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Lawyer says new evidence may clear condemned man

TALLAHASSEE - A lawyer for death row inmate Arthur D. Rutherford asked the state Supreme Court on Thursday to stop his client's pending execution for murdering a Florida Panhandle woman, saying a prosecution witness may have done it.

Attorney Martin McClain argued that Rutherford, who is scheduled to die Tuesday, should get a hearing to determine whether he actually killed Stella Salamon 20 years ago. McClain said Mary Heaton, who has a history of mental problems, told a former roommate and doctors she was the killer.

"Clearly, she's the person that knows what happened," McClain told the justices. "Now that she's crazy, maybe it's the result of her involvement."

Assistant Attorney General Charmaine Millsaps argued that a hearing isn't justified because the new information, even if true, would not necessarily overturn Rutherford's conviction.

The justices heard Rutherford's case two days after the U.S. Supreme Court stopped the execution of another Florida convict, Clarence Hill, so it could consider whether a lower court erred by denying him a chance to challenge the state's lethal injection method as being unconstitutionally cruel.

Rutherford's lawyers have made the same argument, although Thursday's oral argument focused on the new evidence claim.

Rutherford cannot ask the U.S. Supreme Court for a stay until his state appeal is completed, but his attorneys are optimistic that the courts will block his execution until Hill's case is decided.

Rutherford, a Vietnam veteran and carpenter, was convicted of killing Salamon on Aug. 22, 1985, at her Santa Rosa County home, where he had done some repair work. Her body was found submerged in a bathtub.

Mary Heaton, who was never charged in the case, testified at Rutherford's trial that she was not there when Salamon was killed but that Rutherford later had her sign and cash a check stolen from the victim.

Investigators working for Rutherford's lawyers in December spoke with Alan Gilkerson, who once lived with Heaton. He is now in prison for aggravated assault and witness intimidation. He told them Heaton once admitted to him that she killed Salamon.

Heaton has denied that but also has said, contrary to her trial testimony, that she was present and saw Rutherford kill Salamon, according to a sworn statement from investigator Michael Glantz.

"That may increase Mary Heaton's guilt, but that does not undermine Rutherford's guilt," Millsaps told the justices. She noted that four other witnesses testified at trial that Rutherford told them he killed or had been planning to kill Salamon.

[Last modified January 27, 2006, 01:20:12]