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Death method may go on trial

Execution of a Florida killer is stayed to judge civil rights issues, but lethal injections could be next.

By STEVE BOUSQUET, CHRIS TISCH and ANITA KUMAR
Published January 26, 2006


TALLAHASSEE - The U.S. Supreme Court on Wednesday blocked the execution of a condemned killer so justices can decide legal issues that could result in a challenge to Florida's method of execution by lethal injection.

The court's surprise action spares the life of Clarence Edward Hill, 48, who is sentenced to die for murdering a Pensacola police officer during a 1982 bank robbery.

The execution of Arthur Rutherford, set for Tuesday, also may be delayed because his lawyer is raising some of the same claims as Hill.

The issue in Hill's case is not the constitutionality of the death penalty, but the narrower question of whether a federal appeals court erred in denying Hill's claim that Florida's method of execution violated his civil rights.

Hill's lawyers argue that the mixture of three chemicals used in Florida executions causes excruciating pain and is therefore cruel.

Many other states use the same chemical mixture, but because the court decision focused on whether the federal court had properly considered Hill's claim it was unclear what effect the decision will have on pending executions in other states.

The Supreme Court on Wednesday also rejected a request to stop the Texas execution of a man who killed four people in Houston in 1992. Marion Dudley was executed using lethal injection, and was pronounced dead at 6:16 p.m. (7:16 p.m. EST). Dudley's lawyer had appealed to the Supreme Court, claiming prosecutors withheld evidence.

The court's Hill decision "has the potential to hold up some executions," said David Elliot, spokesman for the National Coalition to Abolish the Death Penalty. "It will not hold up all executions."

The Hill decision comes three months after the Florida Supreme Court urged the state Legislature to consider revising the death penalty in Florida, the only state that doesn't require a unanimous jury vote to impose executions.

Hill had been strapped to a gurney and IV lines were running into his arms Tuesday night at Florida State Prison in Starke, his attorney says, when Justice Anthony M. Kennedy issued a temporary stay. The full court continued the stay Wednesday. "He was happy we get to go and present this to the U.S. Supreme Court," said Hill's attorney, D. Todd Doss. "He is still sore from having the needles in his arms last night."

Death penalty opponents were pleased an execution was halted, but noted the high court stayed the killing to consider a procedural issue, not whether the state's method of execution is cruel.

Hill must first win a complex legal argument that he deserves the chance to challenge his method of execution on civil rights grounds, rather than on grounds already exhausted in the courts. If the Supreme Court were to rule in his favor, Hill would be permitted to argue the civil rights issue at a later time. "It's not earth-shattering news," Elliot said. "Lethal injection is not on trial today. Down the road, it may be."

If Hill reaches that point, the state could simply change the drug cocktail, death penalty defense lawyers say.

"I don't know what would be the next option, if you think about it," said Gov. Jeb Bush. "If electrocution is cruel, if lethal injection is cruel, I'm not sure we have other options. I don't know. All of this is prefaced on a thorough review of what the ruling said."

Bush was surprised by the Supreme Court's intervention. He said lethal injection has survived several legal reviews since the Legislature adopted it in 2000.

"As I understand it, this has been reviewed by the courts in the past so this new review is a little surprising," Bush said. Rep. Jack Seiler, D-Fort Lauderdale, a lawyer who has filed a bill to require unanimous jury verdicts in capital cases in Florida, said he doubted Hill would prevail.

"This just seems like creative lawyering," Seiler said.

Hill was moved back to death row. Oral arguments are scheduled for April 26, and a decision is expected before July.

Carolyn Snurkowski, an assistant attorney general who handles many death penalty appeals, joined Elliot in saying it is too soon to speculate on whether Florida's method of lethal injection is in jeopardy. "I don't want to answer that question. I don't think the issue is ripe," she said. Hill was sentenced to die for the murder of Stephen Taylor, a 26-year-old Pensacola police officer, on Oct. 19, 1982. Taylor and his partner, Larry Bailly, answered a silent alarm at a bank, and Hill shot Taylor in the back as he tried to handcuff Hill's accomplice.

Florida has executed 60 people since 1979, the year it reinstituted capital punishment.

Six years ago, the state approved lethal injection as an alternative to the electric chair after a legal challenge said electrocution was an unconstitutional form of cruel and unusual punishment.

Now, state lawmakers have been asked by the state Supreme Court to consider revising the death penalty again, in the wake of the Pasco County case of Alfredie Steele Jr., accused of shooting to death a sheriff's deputy.

The problem: Florida is the only state that allows a jury to decide by mere majority both whether certain aggravating factors exist and whether to recommend the death penalty. Other states require a unanimous vote to make at least one of those findings.

In the decision, Justice Raoul Cantero asked the Legislature to revisit the issue "to decide whether it wants Florida to remain the outlier state" when it comes to the death penalty.

House Republican leaders have said they're reluctant to take on such a review.

The state plans to execute Arthur Rutherford Tuesday for the 1985 murder of a woman for whom he had worked. His sister is seeking clemency from the governor.

Rutherford's attorney, Linda McDermott, will seek a stay today in arguments before the Florida Supreme Court, using some of the same arguments as Hill. "It's likely we will ultimately end up with the same result," McDermott said.

-- Times staff writers Bill Adair and Alex Leary contributed to this report, which includes information from the Associated Press.

THE DEATH PENALTY IN FLORIDA

Significant events in the history of modern executions in Florida:

1972: The U.S. Supreme Court in Furman vs. Georgia rules that state death penalty laws are unconstitutional. The sentences of 95 men and one woman on Florida's death row are commuted to life in prison.

1976: The death penalty is reinstated by the U.S. Supreme Court under Gregg vs. Georgia.

May 25, 1979: John Spenkelink is executed in the murder of Joe Szymankiewicz, who was killed in a Tallahassee motel room. It was the first execution in Florida since 1964. The electric chair was used.

May 4, 1990: Jessie Joseph Tafero is executed for the 1976 shooting deaths of Florida Highway Patrol Trooper Phillip Black and his friend, Donald Irwin, a visiting Canadian constable. During the execution, a synthetic sponge on Tafero's head burned, causing 3-foot flames.

March 25, 1997: During the execution of Pedro Medina, flames burst from behind the mask over his face. The flames were again blamed on a sponge catching fire. Medina was executed for the 1982 slaying of a neighbor, Dorothy James, in Orlando.

July 8, 1999: Allen Lee Davis bleeds from his nose during execution for the 1982 slayings of a Jacksonville woman, Nancy Weiler, and her daughters Kristina and Katherine. After pictures of his swollen and bloody face appear on the Internet, Florida changes to lethal injection.

Feb. 23, 2000: Terry Sims becomes the first inmate to die by injection. Sims was executed for the 1977 slaying of volunteer Deputy Sheriff George Pfeil in Central Florida.

April 5, 2005: Glen J. Ocha is executed by lethal injection for the 1999 murder of Carol Skjerva, a convenience store clerk in Kissimmee. He is the most recent inmate executed in Florida using lethal injection.

Source: Associated Press. Compiled by Times researcher Angie Drobnic Holan