EXECUTION SCHEDULED

v.

ARTHUR DENNIS RUTHERFORD,

Defendant.

__________________________/

MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCES

ARTHUR DENNIS RUTHERFORD, Defendant in the above-captioned action, submits this Motion to Vacate Judgments of Conviction and Sentences with Special Request for Leave to Amend pursuant to Florida Rule of Criminal Procedure 3.850 and 3.851 and respectfully moves this Court for an Order, pursuant to Rule 3.850, vacating and setting aside his conviction and sentence of death, imposed upon him by this Court. In support thereof, Mr. Rutherford, through counsel, respectfully submits as follows:

1. The Circuit Court of the First Judicial Circuit, Santa Rosa County, entered the judgments of conviction and sentence under consideration.

2. Mr. Rutherford was indicted by a grand jury for first degree murder and robbery on September 1, 1985. On January 31, 1986, the jury found Mr. Rutherford guilty as charged, and the next day, the jury recommended the death penalty.

3. Pursuant to a defense motion for mistrial, the Court found that the State had committed a material, substantial, knowing and willful discovery violation at trial and ordered a re-trial on all issues. Venue was transferred for the re-trial to Walton County, Florida.

4. On September 29, 1986, Mr. Rutherford=s re-trial commenced. He was convicted on October 2, 1986. The penalty phase was conducted on October 2, 1986, and the jury recommended a death sentence by a vote of seven (7) to five (5). Mr. Rutherford was sentenced on December 9, 1986, and the judge=s sentencing order was entered on December 17, 1986.

5. Mr. Rutherford appealed his convictions and sentences, which were affirmed. Rutherford v. State, 545 So. 2d 853 (Fla. 1989). On November 3, 1989, certiorari was denied by the United States Supreme Court. Rutherford v. Florida, 110 S.Ct. 353 (1989).

6. Mr. Rutherford timely filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 on August 1, 1991. An amended motion was filed on October 16, 1992. The circuit court entered an order denying relief on some claims and ordering an evidentiary hearing on Mr. Rutherford=s penalty phase ineffective assistance of counsel claim.

7. At the evidentiary hearing, Mr. Rutherford presented testimony and exhibits regarding trial counsel=s preparation for the penalty phase and regarding mental health and other mitigation available at the time of trial. Following the evidentiary hearing, the circuit court denied relief on all claims. The Florida Supreme Court affirmed the denial of postconviction relief. Rutherford v. State, 727 So. 2d 216 (Fla. 1999).

8. Mr. Rutherford filed a petition for a writ of state habeas corpus on December 21, 1999. The Florida Supreme Court denied Mr. Rutherford=s petition on October 12, 2000. Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000).

9. On March 30, 2001, Mr. Rutherford filed a Petition for Writ of Habeas Corpus in federal court. On August 29, 2002, the district court denied relief on all claims. The Eleventh Circuit affirmed. Rutherford v. Crosby, 385 F. 3d 1300 (11^th cir. 2004). On April 18, 2005, certiorari was denied by the United States Supreme Court. Rutherford v. Crosby, 125 S.Ct. 1847 (2005).

10. On or about September, 2002, Mr. Rutherford filed a successive postconviction

motion in the circuit court. Following the denial of relief by the circuit court, the Florida Supreme Court affirmed on May 25, 2004. Rutherford v. State, Case No. SC03-243 (Fla. 2004), rehearing denied July 23, 2004.

11. On March 4, 2005, Mr. Rutherford filed a petition for a writ of state habeas

corpus. The Florida Supreme Court denied Mr. Rutherford=s petition on July 8, 2005. Rutherford v. State, Case No. SC05-376 (Fla. 2005).

12. On November 28, 2005, Mr. Rutherford filed another petition for a writ of state habeas corpus.. The Florida Supreme Court denied the petition on January 5, 2006. Rutherford v. State, Case No. SC05-2139 (Fla. 2005).

13. On November 29, 2005, Governor Jeb Bush signed a death warrant setting Mr. Rutherford=s execution date for January 31, 2006 at 6:00 p.m. On December 21, 2005, Mr. Rutherford filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. This Court denied Mr. Rutherford=s claims.

14. Mr. Rutherford appealed to the Florida Supreme Court, but the Court affirmed this Court=s order denying all relief. Rutherford v. State, 926 So. 2d 1100 (Fla. 2006).

15. On January 27, 2006, Mr. Rutherford challenged Florida=s lethal injection protocol under 42 U.S.C. ' 1983. The result of Mr. Rutherford=s challenge was that the United States Supreme Court stayed Mr. Rutherford=s execution and on June 19, 2006, granted certiorari and reversed and remanded his case to the Eleventh Circuit Court of Appeals. Mr. Rutherford is presently litigating his challenge under 42 U.S.C. ' 1983 in the federal courts.

By his motion for Rule 3.850 relief, Mr. Rutherford asserts that his conviction and sentence of death were obtained in violation of the Fifth, Sixth, Eighth, and Fourteenth amendments to the United States Constitution and the corresponding provisions of the Florida Constitution for the reasons set forth below.

CLAIM I

NEWLY DISCOVERED EMPIRICAL EVIDENCE DEMONSTRATES THAT MR. RUTHERFORD=S CONVICTION AND SENTENCE OF DEATH CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

1. All other factual allegations contained in this motion and the appendix are fully incorporated herein by specific reference.

2. 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 consistency, or not at all. Furman v. Georgia, 408 U.S. 238, 310 (1972)(per curiam). At issue in Furman were three death sentences: two from Georgia and one from Texas. The Petitioners relying upon statistical analysis of the number of death sentences being imposed and upon whom they were imposed argued that the death penalty was cruel and unusual within the meaning of the Eighth Amendment. Five justices agreed, and each wrote a separate opinion setting forth his reasoning. Each found the manner in which the death schemes were then operating to be arbitrary and capricious. Furman, 408 U.S. at 253 (Douglas, J., concurring) (AWe cannot say from facts disclosed in these records that these defendants were sentenced to death because they were black. Yet our task is not restricted to an effort to divine what motives impelled these death penalties. Rather, we deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.@); Id. at 293 (Brennan, J., concurring) (Ait smacks of little more than a lottery system@); Id. at 309 (Stewart, J., concurring) (A[t]hese death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual@); Id. at 313 (White, J., concurring) (Athere is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not@); Id. at 365-66 (Marshall, J., concurring)(AIt also is evident that the burden of capital 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 attention to the problem and concern might develop.@)(footnote omitted). As a result, Furman stands for the proposition most succinctly explained by Justice Stewart in his concurring opinion: AThe Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be . . . wantonly and . . . freakishly imposed@ on a Acapriciously selected random handful" of individuals. Id. at 310.

3. 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 under Furman. Florida=s newly adopted scheme was reviewed by the United States 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 explained: Athe concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.@ Gregg v. Georgia, 428 U.S. at 195 (plurality opinion). Applying this principle to Florida=s newly-adopted capital sentencing scheme, the Supreme Court concluded:

Florida, like Georgia, has responded to Furman by enacting legislation that 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 Aa reasoned moral response to the defendant's background, character, and crime.@ 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 (1976) (plurality opinion). As a result, a capital sentencing scheme must: 1)Anarrow@ the capital sentencer=s discretion, see Godfrey v. Georgia, 446 U.S. 420 (1980); Maynard v. Cartwright, 486 U.S. 356 (1988); and 2) permit the sentencer to consider Aas a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.@ Lockett v. Ohio, 438 U.S. 586, 604 (emphasis in original). See also Penry v. Lynaugh, 492 U.S. 302, 324 (1989).

4. 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 not that Woodson and Lockett are wrong, but that Woodson and Lockett are rationally irreconcilable with Furman. It is that which led me into the inquiry whether either they or Furman was wrong. I would not know how to apply them -- or, more precisely, how to apply both them and Furman -- if I wanted to. I cannot continue to say, in case after case, what degree of "narrowing" is sufficient to achieve the constitutional objective enunciated in Furman when I know that that objective is in any case impossible of achievement because of Woodson-Lockett. And I cannot continue to say, in case after case, what sort of restraints upon sentencer discretion are unconstitutional under Woodson-Lockett when I know that the Constitution positively favors constraints under Furman. Stare decisis cannot command the impossible. Since I cannot possibly be guided by 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).

5. 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 be imposed fairly, and with reasonable consistency, or not at all, see Furman v. Georgia, 408 U.S. 238 (1972), and, despite the effort of the States and courts to 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 arbitrariness and discrimination from the administration of death, see Furman v. Georgia, supra, can never be achieved without compromising an equally essential component of fundamental fairness -- individualized sentencing. See Lockett v. Ohio, 438 U.S. 586 (1978).

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

6. 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 defendant's background, character, and crime,'" Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) (quoting California v. Brown, 479 U.S. 538, 545, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987) (O'Connor, J., concurring); emphasis deleted); cf. Gregg v. Georgia, 428 U.S. 153, 206, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.) (sanctioning sentencing procedures that "focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant"). The Eighth Amendment, that is, 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 made no sense in fact or morality in the random sentencing before Furman was decided in 1972. See 408 U.S., at 309-310, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (Stewart, J., concurring). Today, a new body of fact must be accounted for in deciding what, in practical terms, the Eighth Amendment guarantees should 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 different," Gregg, 428 U.S., at 188, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (joint 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).

7. On September 17, 2006, five (5) days before the Governor Bush re-scheduled Mr. Rutherford=s execution, the American Bar Association=s Death Penalty Moratorium Implementation Project and the Florida Death Penalty Assessment Team published its comprehensive report of Florida=s death penalty system. See American Bar Association, Evaluating Fairness and Accuracy in the State Death Penalty Systems: The Florida Death Penalty Assessment Report, September 17, 2006 (hereinafter ABA Report on Florida). Appendix B. The information, analysis and ultimate conclusions contained in the ABA Report make clear: Florida=s death penalty system is so seriously flawed and broken that it does not meet the constitutional requisite of being fair, reliable or accurate. Id. at iii (AThe team has concluded, however, that the State of Florida fails to comply or is only in partial compliance with many of these recommendations and that many of these shortcomings are substantial.@). The flaws and defects identified by the ABA Report demonstrate that Florida=s capital sentencing scheme does not deliver on the Furman promise. 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 defendant, but upon the flaws and defects of the capital sentencing process. Thus, Athe imposition and carrying out of the death penalty in [Mr. Rutherford=s] case[] constitute[s] cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.@ Furman, 408 U.S. at 239-40.

A. Background about the Report

8. The ABA has always believed that A[f]airness and accuracy together form the foundation of the American criminal Justice system@ and that Athese goals are particularly important in cases in which the death penalty is sought.@ ABA Report on Florida at 1. In 1997, the ABA responded to the growing concern that the capital jurisdictions did not provide fairness and accuracy in the administration of justice and called for a moratorium on executions until the states had an opportunity to study and implement changes to their systems. Id. Florida did not heed the ABA=s advice and no moratorium was imposed, nor any comprehensive study conducted. Instead, Florida continued to impose the death penalty and carry out executions.

9. In 2001, the ABA 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 penalty issues. Id. And, A[t]o assist the majority of capital jurisdiction that have not yet conducted comprehensive examinations of their death penalty systems, the Project decided in February 2003 to examine several U.S. jurisdictions= death penalty systems and preliminarily determine the extent to which they achieve fairness and provide due process.@ Id. Florida was one such jurisdiction. Along with individuals from the ABA, a state assessment team was assembled. Id. at 2. Those comprising Florida=s 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 the University of Florida College of Law. Id. at 3-6.

10. The state assessment team in Florida was charged with Acollecting and analyzing various laws, rules, procedures, standards and guidelines relating to the administration of the death penalty.@ Id. As set forth in the report=s table of contents, the team concentrated on thirteen distinct 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 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.

11. The team identified a number of the areas discussed in the report Ain which Florida=s death penalty system falls short in the effort to afford every capital defendant fair and accurate procedures@ ABA Report on Florida at iii. In the report, recommendations were made to assist Florida in fixing a broken system. But, the team cautioned that the apparent harms in the system Aare cumulative@ and must be considered in such a way; Aproblems in one area can undermine sound procedures in others.@ Id. at iii-iv. A review of the areas identified in the report as falling short makes apparent that in Florida=s death penalty scheme is deficient for the many of the same reasons the schemes at issue in Furman were found to be unconstitutional. Death sentences, like Mr. Rutherford=s, are a product of an arbitrary and capricious system. Those death sentences that are actually carried out have another layer of arbitrariness, 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.

B. Florida B An Arbitrary and Capricious Death Penalty System

1. The Number of Executions

12. The information and conclusions contained in the ABA Report make clear that Florida=s death penalty scheme has failed to satisfy the Furman mandate. Florida=s 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, 408 U.S. at 293 (Brennan, J., concurring) (Ait smacks of little more than a lottery system@); Id. at 309 (Stewart, J., concurring) (A[t]hese death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual@); Id. at 313 (White, J., concurring) (Athere is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not@). The ABA Report on Florida demonstrates the same flaws and defects condemned in the Furman once again infect Florida=s capital sentencing scheme.

2. The Exonerated

13. In Florida, since 1972, twenty-two (22) people have been exonerated and another individual has been exonerated posthumously, while sixty-one (61) people have been executed. ABA Report on Florida at iv, 8 (A[T]he proportion exonerated exceeds thirty percent of the number executed.@). ASince the reinstatement of the death penalty in 1972, Florida has led the nation in death row exonerations.@ Id. at 45. As noted by 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 staggering rate of exonerations certainly suggest that Florida=s death penalty system is just as broken as Illinois= was B that politics, race, prosecutorial misconduct and 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 row after 17 years. Surely what happened to Mr. Melendez was Acruel and unusual in the same way that being struck by lightning is cruel and unusual@ Furman 408 U.S. at 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 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.

14. While the State of Florida has recently passed legislation to allow capital defendants the opportunity to seek DNA testing, most of the exonerated defendants= cases, had no connection to favorable post-verdict DNA results. Yet, the State of Florida has not made any substantive or procedural improvements for those who have no DNA evidence in their case, but could show innocence through the use of other evidence. Indeed, while the State of Florida has now removed the time limitation for bringing a motion seeking DNA testing, see Fla. Stat. ' 925.11 (1)(b) (2006); Fla. R. Crim. P. 3.853, capital postconviction defendants, like Mr. Rutherford, must prove due diligence in bringing their claims of innocence.

15. Indeed, the Florida Supreme 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 capital defendant=s attorney had not been diligent in uncovering and presenting the evidence that demonstrated innocence. Swafford v. State, 828 So. 2d 966, 977-78 (Fla. 2002). In fact in Swafford, three justices dissented on the grounds that the new evidence would have probably produced an acquittal had it been presented to the jury. Id. at 978-79 (Anstead, J., dissenting) (AThis case represents one of those truly rare instances where this Court has summarily brushed aside on wholly speculative grounds a colorable claim of actual innocence and a possible serious miscarriage of justice. There has been absolutely no focus here on the reality of what actually happened.@). In yet another case, the Florida Supreme Court, while considering some of the newly discovered evidence presented in a successive collateral motion, excluded from its consideration certain other pieces of the newly discovered evidence. The Florida Supreme Court deferred to the circuit court=s conclusion that Leo Jones had failed to prove his diligence in uncovering certain pieces of newly discovered evidence, and excluded evidence of another man=s confession as inadmissible hearsay. Jones v. State, 709 so. 2d 512, 519-20, 525 (Fla. 1998). In Jones, two justices dissented. See Id. at 527 (Anstead, J. dissenting) (this case Ais troubling because of the sheer volume of evidence present in the record that another person committed the murder, and, yet, none of this evidence was heard by the jury that tried and convicted Jones@); Id. at 535-36 (Shaw, J., dissenting) (AThe collateral 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 of a different color from that which was considered by the jury in 1981. >Fairness, reasonableness and justice=--and indeed, the integrity of Florida's capital sentencing scheme--dictate that a jury consider the complete case.@). 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 violation of Furman. It simply defies logic to require an innocence man to be executed because his attorney failed to prove diligence in discovering the evidence that proves his innocence.

16. 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. Furman, 408 U.S. at 366 (AOur >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.@). Yet, not only does empirical evidence now demonstrate that Florida has the highest exoneration in capital cases of any state, nothing has been done to investigate, find out why, and attempt to remedy the matter. Having such knowledge and experiencing such a situation first-hand in Florida, the courts and government have ignored the arbitrariness that accompanies the determinations that one type of proof of innocence is less valuable than another; one type qualifies for less procedural restrictions than another; and one type imposes less hurdles to be cleared before consideration of the evidence on the merits.

17. While DNA is a powerful tool in proving innocence, the recantation of witness testimony, confession by another individual to a third-party and other scientific improvement may be equally revealing. See House v. Bell, 126 S.Ct. 2064 (2006). And, while there may be a more obvious issue of credibility attached to evidence of recantations, confessions and other scientific advances than may not be present with DNA, that does not mean that there will not be credibility issues raised as to the accuracy of DNA results. It is simply arbitrary to place a diligence requirement when dealing with a particular type of evidence of diligence, but not another. See Jones; Swafford.

18. Florida=s decision to ignore the need for an actual innocence exception which 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 bars (i.e. innocent people should not be locked up in prisons) across the board to all evidence of innocence. As a result, Florida=s capital sentencing scheme violates the principles enunciated in Furman.

b. DNA.

19. 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 are the circumstances in Mr. Rutherford=s case.

20. As the ABA Report on Florida makes clear: AMany who have been wrongfully convicted cannot prove their innocence because states often fail to adequately preserve material evidence.@ ABA Report at 43. Indeed, Athe State of Florida did not require the preservation of physical evidence in death penalty cases until October 1, 2001.@ Id. at 56. There is no protection for defendants who fall into this category. Thus, depending on whether an agency of the State of Florida had the space to store evidence, the weather, and other extraneous factors, evidence of innocence will be 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 only be described as Awanton@ or Afreakish@. Furman, 408 U.S. at 310.

2. Representation

21. 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. Indeed, the team considered defense counsel=s competence to be perhaps the most 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).

a. Trial level representation.

22. 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 of the funding and timing of counsel=s ability to seek payment severely hamper obtaining qualified counsel who has adequate funding for a death penalty case. Of course, Florida is obligated to provide effective representation at the trial under the Sixth Amendment. Strickland v. Washington, 466 U.S. 668 (1984). As explained in Strickland, the purpose of this constitutional obligation is insure that the trial is an adequate adversarial testing that produces a reliable result. Recently, the United States Supreme Court not only recognized that the ABA had promulgated a set of guidelines devoted to setting forth the obligations of defense counsel in capital cases, but found that those guidelines served as a benchmark in further the goal of obtaining a constitutionally adequate adversarial testing. Rompilla v. Beard, 545 U.S. 374 (2005). With those guidelines in mind, the team recommended that steps be taken to insure the appointment of Aqualified and properly compensated counsel.@ Id. at 174. The team also recommended that this guarantee include A[a]t least two attorneys@ with access to 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

23. An even more substantive failure to deliver on the Furman promise arises in the context of Florida=s capital postconviction representation. The quality of Florida=s capital postconviction representation system has steadily declined over the past ten years when the federal funding for resource centers was eliminated. The past ten years have demonstrated a consistent pattern of turmoil and chaos in the representation of capital postconviction defendants. The state-funded agency responsible for representing postconviction defendants was overwhelmed with cases, absorbing those cases that the federally funded organization had represented, and a large number of cases in the mid-90s when death sentences spiked and rule changes caused initial motions to be filed much quicker than in previous years. That the 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 process at which errors are sought to be caught and corrected, qualifications to be appointed to a capital postconviction case are minimal, oversight is non-existent, and funding is inadequate. Id. at v. Compensation is capped. Though the Florida Supreme Court has recognized that the cap may be breached in extraordinary circumstances, the fact that the determination of whether the cap was properly breached is made after the fact. Fla. Dept.of Financial Services v. Freeman, 921 So. 2d 598 (Fla. 2006). Certainly, requiring attorneys who find that the requisite work exceeds the statutory cap to litigate their compensation after the fact has a chilling effect. Within the Registry system, statutorily funding is only available for 840 attorney hours for attorneys representing capital postconviction defendants on the registry when research suggests that 3,300 attorney hours are required to represent a capital postconviction defendant. ABA Report on Florida at v. This is not the only monetary limitation, funds for investigative, expert, travel and other costs is limited. Moreover, there is no provision for compensation for successor proceedings.

24. 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 represented by CCC attorneys. Undoubtedly, this disparity in funding will impact the representation and arbitrarily effect the ultimate success of capital postconviction defendants in challenging their convictions and death sentences.

25. In 1988, the Florida Supreme Court recognized that the creation of CCR extend to all Florida capital defendants the right to have effective representation in all collateral proceedings in both state and federal court. Spalding v. Dugger, 526 So. 2d 71, 72 (Fla. 1988) (Aeach 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 represent Florida's death-sentenced prisoners in collateral relief proceedings.@). Having recognized the statutorily created right, the Florida Supreme Court has generally found that no remedy exists for a breach of the statutorily created right to effective collateral counsel. Lambrix v. State, 698 So. 2d 247, 248 (Fla. 1996) (Aclaims of ineffective assistance of postconviction counsel do not present a valid basis for relief@). The Florida Supreme Court did 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. 2001). Otherwise, state-provided collateral counsel=s failure to exercise diligence in investigating and timely presenting evidence of innocence or of a constitutional deprivation operates as a bar to a court=s consideration of the resulting claims for relief. See Swafford v. State, 828 So. 2d 966, 977-78 (Fla. 2002).

26. 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 lack of diligence fails to provide effective representation, Florida=s capital sentencing 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 the Florida Supreme 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 attorneys in at least twelve separate cases filed their clients= state post-conviction 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 stated that the representation provided by some registry attorneys is A[s]ome of the worst lawyering@ he has ever seen. Specifically, Asome of the registry 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 haven=t raised the right ones.@ Chief Justice Barbara Pariente reiterated the concerns of Justice Cantero by stating that A[a]s for registry counsel, we have observed deficiencies and we would definitely endorse the need for increased standards for registry counsel, as well as a continuing system of screening and monitoring to ensure minimal levels of competence.@ The questionable 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 CCRC-North 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 attorneys provided by the State are incompetent, i.e. some of the worst lawyering ever seen. Yet, the capital defendants provided some of the worst lawyering ever seen must accept the incompetent representation without recourse.

27. 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 defendants= rights and avenues to obtain relief without their consent or knowledge. See ACLU=s Amicus Brief in Lawrence v. Florida, Appendix C.

28. A system that knowingly provides capital defendants with Asome of the worst lawyers@ that a Justice of the Florida Supreme Court has ever seen, and strips the capital defendant of 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 with 22 exonerations, Florida=s trial system warrants Aa constitutional safety net.@ Jones v. State, 709 So. 2d. at 535-36 (Shaw, J., dissenting). Yet, it is well-recognized within the State of Florida, as the ABA Report documents, that the Asafety net@ has been stripped away. Those capital postconviction defendants who receive Asome of the worst lawyering@ that a Florida Supreme Court justice has ever seen and who may have meritorious claims for relief and who in fact may be innocence, have been arbitrarily denied any real chance of obtaining relief by Florida=s knowing willingness to provide incompetent counsel. The situation Asmacks of little more than a lottery system.@ Furman, 408 U.S. at 293 (Brennan, J., concurring). The outcome of the post conviction process, directly linked to whether state-appointed counsel is incompetent, is a purely arbitrary.

3. Issues Related to the Jury=s Role in Sentencing

29. 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 whether a defendant receives the death penalty, do not understand Atheir role or responsibilities when deciding whether to impose a death sentence.@ ABA Report on Florida at vi. Indeed, A[i]n one study, over 35 percent of interviewed Florida capital jurors did not understand that they could consider any evidence in mitigation and 48.7 percent believed that the defense had to prove mitigating factors beyond a reasonable doubt.@ Id. The same study found that over thirty-six percent (36%) Abelieved that they were required to sentence the defendant to death if they found the defendant=s conduct to be >heinous, vile or depraved=@ beyond a reasonable doubt. Id. (emphasis in original). Over twenty-five percent (25%) considered future dangerousness, even though such a factor is not a legitimate sentencing factor under Florida law. Id. Based on these disturbing results, the state assessment team recommended that the State of Florida redraft its capital jury instructions in order to prevent common juror misconceptions, misconceptions that can only inject arbitrariness to the process. Id. at x. The presence of an identified arbitrary factor, i.e. juror confusion, warrants action. Had Florida 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.

30. AFlorida is now the only state in the country that allows a jury to find that aggravators exist and to recommend a sentence of death by a mere majority vote.@ 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 by a majority vote reduces the jury=s deliberation time and may diminish the 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 consistent with the presumption of innocence, the State=s burden to prove guilt beyond a reasonable doubt, and the general desire to ensure greater certainty of the reliability of a finding of guilt. It should then follow that permitting a less than unanimous verdict during the penalty phase reflects a choice that the guilt phase concerns warranting unanimity are not present in the penalty phase. In the ABA Report on Florida, the state assessment team recommended that the State of Florida require a unanimous jury verdict. Id. at x.

31. 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 Report on Florida at 311 (Athe Florida Supreme Court has consistently rejected >residual= or >lingering doubt= as a non-statutory mitigating circumstance@). It is certainly logical that an innocent man or woman may have less to argue in the way of mitigation than a guilty one. See Cheshire v. State, 568 So. 2d 908, 912 (1990) (AEvents 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 considered by the sentencing court.@). Where the defendant is innocent, the reality is that there were no Aevents@ that led to a murder that he did not commit. There is only the mitigation inherent in any individual=s life story. Thus, the exclusion of lingering 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.

32. The coupling of a simple majority verdict with the preclusion of consideration of lingering doubt as a basis for a sentence of less than death certainly add to the risk that an innocent will be sentence to death. Given that Florida is the only state to have coupled these things together and given that Florida leads the nation in capital exoneration, certainly provides a basis for arguing the synergistic effect of the choices made in structuring Florida=s capital scheme has produced a system that Asmacks of little more than a lottery system.@ Furman, 408 U.S. at 293 (Brennan, J., concurring). 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.

33. In Florida, the judge who presides over a capital sentencing proceedings has the ability to override a jury=s sentencing recommendation. ABA Report on Florida at 31. The Florida Supreme 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:

This presents a serious Furman problem because, if Tedder deference is paid, 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 the Florida Supreme 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 prove that Tedder has not been applied with the force suggested by its language, 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 concurrence to Grossman v. State, 525 So.2d 833, 851 (Fla. 1988) (Shaw, J., specially concurring):

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. . . .

Clearly, since 1985 the Court has determined that Tedder means 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 differ." Tedder, 322 So.2d at 910.

Cochran v. State, 547 So. 2d 928, 933 (Fla. 1989). Thus, the Florida Supreme 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.

34. 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.

35. But not just members of the Florida Supreme Court have been trouble by the jury override and the Florida Supreme Court=s erratic treatment of the Tedder standard. In Parker v. Dugger, 498 U.S. 308 (1991), the United States Supreme Court reviewed the Florida Supreme Court=s application of 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 judge=s findings regarding mitigating circumstances, and affirm the sentence based on a mischaracterization of the trial judge=s findings.

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=s sentence at all.

Parker, 498 U.S. at 321.

36. The sporadic use of the judicial override and the erratic application of the Tedder standard has again injected arbitrariness into Florida=s capital sentencing scheme. As noted by Justice Shaw, the use of the override and the use of the Tedder Apresent[ed] a serious Furman problem@ B this has simply been ignored. 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.

37. Racial and geographic disparities still plague Florida=s death penalty scheme as noted in the ABA Report.

a. Racial Disparities.

38. The ABA Report relied on three previous studies concerning race and the death penalty as well as an analysis of current statistical discrepancies concerning race and the death penalty. In 1991, the Florida Supreme Court=s Racial and Ethnic Bias Commission found that Athe application of the death penalty is not colorblind.@ ABA 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 African American. Id. 7-8. This statistic has not changed. A[A]s of December 10, 1999, of the 386 inmates on Florida=s death row, >only five were whites condemned for killing blacks. Six were condemned for the serial killings of whites and blacks. And three other whites were sentenced to death for killing Hispanics.= Additionally, since Florida reinstated the death penalty there have been no executions of white defendants for killing African American victims.@ Id. at viii.

39. The statistics relied on in the ABA Report on Florida make clear that race is a factor in Florida=s death penalty scheme. Such a factor causes the death penalty to 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 into the sentencing process. ABA Report on Florida at xi. The State of Florida=s 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 system that permits the death penalty Ato be . . . wantonly and . . . freakishly imposed@ on a Acapriciously selected random handful" of individuals. Furman, 408 U.S. at 310.

40. Likewise, geographic disparities contribute to the arbitrariness of Florida=s 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 imposed that year came from the panhandle. ABA Report on Florida at 9. Thus, death sentences are significantly influenced by the county where a crime occurred. Geographic disparities clearly show that a factor unrelated to the circumstances of the crime or the character of the defendant are at work in the decision to seek and impose a death sentence. In a state such as Florida, where race, ethnicity, religious affiliation, cultural background, age and political philosophies differ so drastically from county to county, the geographic disparity breaches the Furman promise that death sentences not be premised upon arbitrary factors.

5. Prosecutorial Misconduct

41. AThe prosecutor plays a critical role in the criminal justice system.@ ABA Report on Florida at 107. And, even more so in a capital case, where the prosecutor had Aenormous discretion@ in determining whether to seek the death penalty. Id. Yet, the Florida Supreme 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 So.2d 1169 (Fla. 1988); Arango v. State, 497 So. 2d 1161 (Fla. 1986). On occasion, the Florida Supreme Court has found the prosecutorial misconduct was only sufficiently prejudicial at the penalty phase to warrant the grant of penalty phase relief. Young v. State, 739 So. 2d 553 (Fla. 1999); Garcia v. State, 622 So. 2d 1325 (Fla. 1993). And on a number of occasions, the Florida Supreme 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 So. 2d 553 (Fla. 2001); Duest v. Dugger, 555 So. 2d 849 (Fla. 1990).

42. Despite the numerous instances of prosecutorial misconduct in Florida capital cases, no investigation has been launched nor program instituted to stamp out such misconduct. Despite the frequency of prosecutorial misconduct, whether 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.

43. However, the ABA=s assessment team stated that to stop prosecutorial abuses, Athere must be meaningful sanctions, both criminal and civil, against prosecutors who engage in misconduct.@ ABA Report on Florida at 108. In fact, the United States Supreme Court has recognized that a prosecutor is:

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 to checks and balances. Florida=s willingness to tolerate prosecutorial misconduct violates the promise of Furman.

44. The ABA Report further recommends that each prosecutor=s office have written polices governing the exercise of prosecutorial discretion. Id at 125. This is necessary given Florida=s history to try to eradicate arbitrary factors from not just the trial, but in the exercise of prosecutorial discretion to seek death in the first instances. Without such policies or guidelines, Florida=s death penalty scheme Asmacks of little more than a lottery system.@ Furman, 408 U.S. at 293 (Brennan, J., concurring).

45. Time and time again, prosecutors violate the rules B the rules of discovery, the rules of evidence, the rules of due process. The Florida Supreme 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 was Aharmless@ or insufficiently prejudicial. The failure to do anything about the numerous instances of prosecutors not following the rules, or in essence excusing the misconduct because of an apparent Ano harm no foul@ rule, actually encourages 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, certainly offers a ready explanation for Florida=s leadership of death row 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 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

46. The Florida Supreme 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, because the Florida Supreme Court only reviews cases Awhere the death penalty was not imposed in cases involving multiple co-defendants@, the proportionality is skewed. ABA Report on Florida at xxii. ABecause of the role that meaningful comparative proportionality 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 discriminatory manner.@ Id. at xxii, 208. The limited scope of the proportionality review, only looking at other cases in which death has been imposed, skews the review in favor of death and undercuts its Ameaningfulness@. But in addition to this, the ABA assessment team noted a disturbing trend in the Florida Supreme Court=s proportionality review: ASpecifically, the study found that the Florida Supreme Court=s average rate of vacating death sentences significantly decreased from 20 percent for the 1989-1999 time period to 4 percent for the 2000-2003 time period.@ ABA Report on Florida at 212. The ABA Report noted Athat this drop-off resulted from the Florida Supreme Court=s failure to undertake comparative proportionality review in the >meaningful and vigorous manner= it did between 1989 and 1999.@ ABA Report at 213. The ABA Report also noted Athat, since 1999, the Florida Supreme Court is no longer holding true to its own rule that proportionality review should be a >qualitative review . . . of the underlying basis for each aggravator and mitigator= and not simply a comparison between the number of aggravating and mitigating circumstances.@ ABA Report on Florida at 213.

47. 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 not a Ameaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not@ Furman, 408 U.S. at 313 (White, J., concurring).

48. As noted previously, the shift in the Florida Supreme Court=s proportionality review commencing since the year 2000, reflects a reoccurring pattern in the appellate process. The Florida Supreme Court=s review of judicial overrides of life recommendations has 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.

49. Even the United States Supreme Court has noted deficiencies in the Florida Supreme Court=s appellate review. See Parker v. Dugger, 498 U.S. 308, 320 (1991)(AWhat 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 judge=s findings regarding mitigating circumstances, and affirm the sentence based on a mischaracterization of the trial judge=s findings.@). In Parker, the Florida Supreme Court=s failure to accurately read the 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=s sentence at all.

Parker, 498 U.S. at 321.

7. Retroactivity

50. 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, the Florida Supreme 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 the Florida Supreme Court did not read Strickland the way it was read and applied in Rompilla, Wiggins, and Taylor. Yet, the Florida Supreme 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, Wiggins, or Williams. Thus, individuals on Florida=s death row who have meritorious claims under any one of these three decisions and who presented those claims to the Florida Supreme Court before the issuance of these three opinions since the year 2000, will not get the benefit of those three decisions. In essence, the Florida Supreme Court has stripped those death row inmates of their Sixth Amendment rights as defined by the United States Supreme Court. Since the very purpose of Strickland (and of Rompilla, and of Wiggins, and of Williams) was to insure that a constitutionally adequate adversarial testing occurred and that it produced a constitutionally reliable result, the Florida Supreme Court=s action defeats that purpose. It again injects arbitrariness into Florida=s death penalty system.

51. Another example of arbitrariness injected into the capital process by the Florida Supreme Court=s erratic action in applying decisions retroactively can be seen in the manner 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, the issue concerned whether Mr. Delgado, who had entered the victims= home with consent, committed a burglary by Aremaining in@ the residence. The Florida Supreme Court concluded that the Aremaining in@ language only applied where the Aremaining in@ was done surreptitiously. In reaching this conclusion, the Florida Supreme Court overturned a number of prior decisions, including Jimenez v. State, 703 So. 2d 437, 441 (Fla. 1997)(AJimenez argues that the burglary was not proven because there was no proof of forced entry, or that Minas refused entry, or that she demanded that he leave the apartment.@). The alleged burglary in Mr. Jimenez=s case happened in 1992 and involving the same criminal statute at issue in Delgado. Yet, the Florida Supreme 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, the Florida Supreme 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).

52. Because of the manner in which the Florida Supreme Court used retroactivity rules to preclude consideration of meritorious claims, the ABA assessment team recommended in its report that the Florida state courts Ashould give full retroactive effect to United States Supreme Court decisions in all proceedings, including second and successive post-conviction proceedings, and should consider in such proceedings the decisions of federal appeals and district courts.@ ABA Report on Florida at 241. Certainly, the 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 the Florida Supreme Court applies its retroactivity rules is arbitrary and violates Furman.

8. Procedural Default

53. Further, the Florida Supreme 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 legally undeserving will be executed. It decreases a Ameaningful basis for distinguishing the few cases in which [death] is imposed from the many cases in which it is not@ Furman, at 313 (White, J., concurring). The ABA assessment team recommended in its report that AState courts should permit second and successive post-conviction proceedings in capital cases where counsels= omissions or intervening court decisions resulted in possibly meritorious claims not previously being raised, factually or legally developed, or accepted as legally valid.@ ABA Report on Florida at 241. As it is, the Florida death penalty scheme violates Furman.

9. Clemency

54. 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 assessment team found Florida=s clemency process to be severely lacking: AGiven the ambiguities and confidentiality surrounding Florida=s clemency decision-making process and that fact that clemency has not been granted to a death-sentenced inmate since 1983, it is difficult to conclude that Florida=s clemency process is adequate.@ ABA Report on Florida at vii. See Furman, 408 U.S. at 253 (Douglas, J., concurring) (AUnder these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.@).

55. The clemency process is entirely arbitrary because there are no rules or guidelines Adelineating the factors that the Board should consider, but not to be limited to@ for consideration of clemency. For all practical purposes, the clemency process seems to be dead. It does not appear that any serious consideration is given. It certainly does not function in the manner that is suggested it should in Herrera. The clemency process is part and parcel of Florida=s death penalty scheme. All it provides is more arbitrariness.

10. Politics

56. Undoubtedly politics is a factor that causes arbitrariness in Florida=s death penalty scheme. In fact, the state assessment team noted that judicial elections and appointments are influenced by consideration of judicial nominees= or candidates views on the death penalty. ABA Report at xxxi. The team also cited the Florida Supreme Court=s recent quantitative approach to proportionality review, which has been caused by political pressures and the change of composition of the Court. Id at 213.

57. Certainly, nothing could be clearer in Mr. Rutherford=s case, where the timing 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 execution is issued incident to an appeal, Aupon certification by the Attorney General that the stay has been lifted or dissolved, within 10 days after such certification, the Governor must set the new date for execution of the death sentence.@ Sec. 922.06, 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 Court=s stay of Mr. Hill=s execution had dissolved. This was a little less than two weeks before the contested primary election in which Mr. Crist was seeking the Republican nomination for governor however, and nearly two months after the stay had actually dissolved. Attorney General Crist and his representatives claimed that because Mr. Hill had nothing pending in court the statute was invoked; yet, his case was in fact pending in the Eleventh Circuit awaiting action by that court following the remand from the United States Supreme Court.

58. Now, only weeks away from the general election, Attorney General Crist has notified Governor Bush that Mr. Rutherford=s stay has likewise dissolved. And, Mr. Rutherford=s execution has been scheduled for just weeks before the election. Contrary to Attorney General Crist=s contention that Mr. Hill had nothing pending, thus, he invoked the statute, Mr. Rutherford does have briefs pending before the Eleventh Circuit Court of Appeals.

59. Florida=s death penalty scheme is infected by politics and decisions made for political gain rather than in fairness.

11. Mental Disabilities

60. The ABA assessment team concluded: AThe State of Florida has a significant number of people with severe mental disabilities on death row, some of whom were disabled at the time of the offense and others of whom became seriously ill after conviction and sentence.@ ABA Report on Florida at ix. And, while Florida has 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.

61. 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 are not. See Fla. Stat. ' 921.137; Fla. R. Crim. P. 3.203. Those whose cases are final receive none of the protections as those whose cases are not final, including, but not limited to a jury=s consideration of the issue and the sixth amendment guarantee to effective assistance of counsel. These distinction depending on where a defendant is in his criminal process are arbitrary.

62. The ABA assessment team also criticized the burden of proof imposed on capital defendants and recommended that the State be required to disprove a defendant=s substantial showing that he is mentally retarded. ABA Report on Florida 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 alive who can advise mental health experts as to the defendant=s adaptive skills, etc.

12. Crime Laboratories and Medical Examiner=s Offices

63. The ABA Report on Florida also describes many of the problems in the crime laboratories and medical examiner=s offices in the State of Florida. The team found that: AThe deficiencies in crime laboratories and the misconduct and incompetence 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 inadequate funding.@ Id at 83. The result of these problems is errors B errors that go 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 arbitrariness into Florida=s death penalty scheme in violation of Furman.

C. Conclusion

64. When all of the arbitrary factors identified herein and more fully in the ABA Report on Florida, that is incorporated herein by specific reference, that are present in the Florida death penalty scheme are considered together in analyzing the system=s ability to deliver and/or produce a reliable result, the conclusion is inescapable - Ait smacks of little more than a lottery system.@ Furman, 408 U.S. at 293 (Brennan, J., concurring). A[T]here is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not@ Furman, 408 U.S. at 313 (White, J., concurring). The Florida death penalty process cannot Aassure consistency, fairness, and rationality@ and it cannot Aassure that sentences of death will not be "wantonly" or "freakishly" imposed.@ Proffitt, 428 U.S. at 259-60. Accordingly, Florida=s death penalty scheme stands in violation of the Eighth Amendment.

FLORIDA=S CLEMENCY PROCESS IS ARBITRARY AND CAPRICIOUS AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

1. All other factual allegations contained in this motion and the appendix hereto are fully incorporated herein by specific reference.

2. Mr. Rutherford has a continuing interest in his life until his death sentence is carried out, as guaranteed by the Due Process clause of the Fourteenth Amendment to the United States Constitution. See Ohio Adult Parole Authority, et al. v. Woodard, 523 U.S.272, 288 (1998)(Justices O=Connor, Souter, Ginsburg and Breyer concurring)(AA prisoner under a death sentence remains a living person and consequently has an interest in his life@). This constitutionally- protected interest remains with him throughout the appellate processes, including during clemency proceedings:

Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.

Woodard, 523 U.S. at 289 (emphasis added). The denial of Mr. Rutherford=s clemency petition was arbitrary and the process he received was not due.

3. Indeed, on September 17, 2006, five (5) days before the Governor Bush re-scheduled Mr. Rutherford=s execution, the American Bar Association=s Death Penalty Moratorium Implementation Project and the Florida Death Penalty Assessment Team published its comprehensive report of Florida=s death penalty system. See Appendix B. The report made clear that 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. The state assessment team issuing the report found that the State of Florida=s clemency process was severely lacking: AGiven the ambiguities and confidentiality surrounding Florida=s clemency decision-making process and that fact that clemency has not been granted to a death-sentenced inmate since 1983, it is difficult to conclude that Florida=s clemency process is adequate.@ ABA Report on Florida at vii.

4. Florida=s clemency process is entirely arbitrary because there are no rules or guidelines Adelineating the factors that the Board should consider, but not to be limited to@ for consideration of clemency. In fact, Mr. Rutherford=s own case demonstrates the arbitrariness of Florida=s clemency process.

5. On November 29, 2005, Governor Bush signed Mr. Rutherford=s warrant and scheduled his execution for January 31, 2006, at 6:00 p.m. On January 25, 2006, 2006, Regina Grayson, the oldest daughter of Mr. Rutherford personally delivered a petition for executive clemency to Governor Bush=s office. See Affidavit of Regina Grayson, September 25, 2006 (hereinafter Grayson Aff.), Appendix D. Through the petition Ms. Grayson asked for mercy for her father and pointed to several reasons upon which to grant clemency. See Clemency Petition, Appendix E. Those reasons included her fathers heroic service as a United States Marine during the Viet Nam conflict and the impact his service had on his mental and emotional stability; Mr. Rutherford=s dedication to his family, particularly his children; the jury=s narrow 7 - 5 recommendation for the death penalty; and the doubt about her father=s guilt. Id. Many of the reasons presented were never considered by the jury that narrowly recommended that Mr. Rutherford be sentenced to death. And, since clemency is a way to achieve justice in a case where the courts have been unable to or have not achieved it, Ms. Grayson presented a compelling case for clemency.

6. Mr. Rutherford was deprived of due process in the clemency process and the decision to deny him clemency was the equivalent of flipping a coin. The same day that Ms. Grayson delivered the clemency petition to the Governor Bush=s office, ABush spokesman Russell Schweiss said the governor=s clemency lawyer Aha[d] not yet reviewed the petition but that such cases normally must be filed by convicts themselves or their lawyers, not relatives. He said the issues appear more appropriate for a court of appeal.@ Bill Kaczor, Associated Press, Rutherford=s Daughter Asks Clemency from Bush, Cabinet, January 25, 2006.

7. After much prodding of the governor=s office personnel, Ms. Grayson was told that she could speak to the governor=s Assistant General Counsel, Victoria Brennan, concerning the petition. Like, the governor=s spokesperson, Ms. Brennan, believed that it was Anot [Ms. Grayson=s] place@ to ask for clemency for her father. Grayson Aff. And, Ms. Brennan also felt that the issues Ms. Grayson spoke to her about Mr. Rutherford Adid not matter@ in the clemency process. Id. Mr. Rutherford=s petition was apparently given little, if any, consideration.

8. Ms. Grayson=s experience in attempting to persuade the governor and his cabinet to grant clemency proves that the process is arbitrary. No rules have been set forth about who is the proper party to request clemency, what factors Amatter@ in the clemency process and there is apparently a fundamental misunderstanding in Governor Bush=s office as to the purpose of the clemency process.

9. The misunderstanding of the clemency process is demonstrated by Governor Bush=s General Counsel, Raquel A. Rodriguez, who was asked to comment on the clemency section contained in the ABA Report on Florida. Ms. Rodriguez did not agree that having specific rules and considerations for the clemency process were appropriate as the report recommends. ABA Report on Florida Appendix 1. Ms. Rodriguez set forth her belief that Athe clemency process should not be designed to re-litigate the question of guilt@ and or to review what courts had determined to be Aharmless errors@ Id. Likewise, Ms. Rodriguez dismissed factors such as a petitioner=s mental health issues, age of a defendant and racial disparity as being relevant factors in the clemency process, in part because they are Amatters currently required by law to be addressed at various stages of a murder prosecution.@ Id. However, the factors Ms. Rodriguez dismisses are exactly the types of factors that should be considered and have been considered in granting clemency in the State of Florida. See ABA Report on Florida at 255-6 (outlining the factors considered in granting clemency in the six (6) death-sentenced petitioner=s who received clemency since 1972 B lingering doubt; mental capacity; the disproportionality of the petitioner=s sentence); see also Herrera v. Collins, 506 U.S. 390, 411-12 (1993)(AClemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.@)(footnotes omitted). In fact, in Herrera, the United States Supreme Court made clear: AExecutive clemency has provided the "fail safe" in our criminal justice system. It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence.@ Id at 415.

10. The Florida Death Penalty Assessment Team has indicated that A[t]he clemency process can only fulfill its critical function when the exercise of the clemency power is governed by fundamental principles of justice, fairness, and mercy, and not by political considerations.@ Furthermore, A[t]he clemency process should provide a safeguard for claims that have not been considered on the merits, including claims of innocence and claims of constitutional deficiencies.@ The arbitrariness of Florida=s clemency process is demonstrated by the lack of any specific factors to be considered and in Mr. Rutherford=s case, Ms. Brennan=s opinion that the issues raised on his behalf did not Amatter@, i.e., that the decision-maker did not take into account all factors@. Id. at 254.

11. Mr. Rutherford did not receive due process in his recent clemency proceeding because the process was completely undefined and the information he presented (see Appendix E), was simply dismissed. The denial of clemency for Mr. Rutherford was the equivalent of flipping a coin. Relief is proper.

CLAIM III

THE STATE OF FLORIDA=S FAILURE TO REVIEW FREESTANDING CLAIMS OF ACTUAL INNOCENCE VIOLATES THE EIGHTH AMENDMENT.

1. All other factual allegations contained in this motion and the appendix hereto are fully incorporated herein by specific reference.

2. Recently, in House v. Bell, 126 S.Ct. 2064 (2006), the United States Supreme Court again considered the significance of actual innocence claims brought by capital postconviction defendants. The Supreme Court reviewed Mr. House=s evidence of innocence in the federal habeas context and found that he had shown that in light of the evidence presented Aany reasonable juror would have [had] reasonable doubt@. Id at 2077. In the federal habeas context, meeting the actual innocence burden of proof provided Mr. House with the opportunity to pursue Ahabeas corpus relief based on constitutional claims that are procedurally barred under state law.@ Id. at 2068.

3. Additionally, the House Court examined evidence of innocence similar to the evidence of innocence previously pleaded by Mr. Rutherford. In House, the Supreme Court reviewed Atroubling evidence@ of another suspect. Id. at 2083. As in Mr. Rutherford=s case A[t]he confession evidence here involves an alleged spontaneous statement recounted by [one] eyewitness[] with no evident motive to lie. For this reason it has more probative value than, for example, incriminating testimony from inmates, suspects, or friends or relations of the accused.@ Id. at 2085. Heaton=s confession, especially in light of her possession of the victim=s check shortly after the crime was committed would have Areinforced Aother doubts as to [Mr. Rutherford=s guilt.@ Id.

4. The State of Florida leads the country in death row exonerations. ABA Report on Florida at 8. However, despite this troubling statistic Florida does not recognize actual innocence as a claim for relief. In addition, innocence, or lingering doubt is not a factor for a jury to consider in determining punishment. ABA Report on Florida at 311 (Athe Florida Supreme Court has consistently rejected >residual= or >lingering doubt= as a non-statutory mitigating circumstance@). And, in Florida, under the current governor, actual innocence or lingering doubt, is not a factor to be considered in the clemency process. See Claim II, supra. Thus, in the State of Florida actual innocence means nothing after a jury has rendered a guilty verdict. This predicament demonstrates the unreliability and failure of the death penalty scheme in Florida.

5. This Court must establish an actual innocence exception and allow Mr. Rutherford to fully present his evidence of innocence. Relief is proper.

CONCLUSION AND RELIEF SOUGHT

Mr. Rutherford prays for the following relief, based on his prima facie allegations demonstrating violation of his constitutional rights:

1. That he be allowed leave to amend this motion should new claims, facts, or legal precedent become available to counsel;

2. that he be granted an evidentiary hearing at a reasonable time; and

3. that his convictions and sentences, including his sentence of death, be vacated.

I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by federal express delivery, to all counsel of record on September 26, 2006.

___________________________________

LINDA MCDERMOTT

Fla. Bar No. 0102857

___________________________________

MARTIN McCLAIN

McClain & McDermott, P.A.

Attorneys at Law

141 N.E. 30^th Street

Wilton Manors, FL 33334

(850) 322-2172

Counsel for Mr. Rutherford

Copies furnished to:

The Honorable Paul A. Rasmussen

Santa Rosa County Courthouse

6865 Caroline Street, Box K

Milton, FL 32570

Charmaine Millsaps

Assistant Attorney General

Office of the Attorney General

The Capitol - PL-01

Tallahassee, FL 32399

John Molchan

Assistant State Attorney

Office of the State Attorney

5185 Elmira Street

Milton, FL 32570