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Bid to halt execution says death penalty is flawed

By GRAHAM BRINK
Published September 29, 2006


Last week, the American Bar Association issued a 403-page report that reprehended Florida's handling of the death penalty.

Today, renowned death penalty defense attorney Martin McClain hopes the report will keep the state from executing one of his clients.

McClain filed a motion Thursday asking a judge to vacate the conviction and sentence of Arthur Rutherford, who was sent to death row for killing a woman in Santa Rosa County in 1985.

In a 56-page motion, McClain cited numerous examples from the ABA report outlining the problems in Florida's death penalty system.

"The report makes it clear that Florida's death penalty system is seriously flawed and is not fair or reliable," McClain said Thursday. "This is from a comprehensive investigation performed by a panel that includes judges and prosecutors."

A hearing on the motion is scheduled for today. Rutherford's execution is set for Oct. 18. McClain's effort comes just one week after Florida executed its first death row inmate in 18 months. That inmate, Clarence Hill, halted the state's death penalty for months while he argued that lethal injection is cruel and unusual punishment.

Rutherford, who had won a stay while Hill's appeals were pending, then received a new date for execution. Gov. Jeb Bush also signed a Oct. 25 death warrant for Gainesville serial killer Danny Rolling, one of Florida's most notorious murderers.

If McClain succeeds in using the ABA report to get Rutherford's sentence vacated, defense attorneys across the state likely will file similar motions.

Pinellas-Pasco Public Defender Bob Dillinger said sweeping changes to the death penalty system aren't likely.

McClain has the difficult task of proving that Rutherford - not death row inmates in general - suffered as a result of any deficiencies in the system, Dillinger said.

Add to that the Legislature's decision not to act on a challenge from the Florida Supreme Court last year to address some of the same problems raised in the ABA report, he said.

"The Legislature already ignored the Supreme Court," Dillinger said. "It will be even easier to ignore the ABA."

The ABA team, which did not take a stand for or against the death penalty, spent 18 months looking into Florida's system. The team compared the state's procedures against 93 ABA standards and found Florida in full compliance with only eight and partial compliance with 36.

Florida's system has problems with unqualified and underfunded defense attorneys, ill-informed juries, secrecy in the clemency process and racial disparities, among others, the report concluded.

Florida led the nation in death row exonerations with 22, the report stated.

"Much more needs to be done to ensure that Florida's death penalty system avoids executing the innocent," panel member and University of Florida law professor Christopher Slobogin said when the report was released.

Team members called for reforms, including a requirement of unanimous jury verdicts for death sentences. Florida is the only state that allows a jury to recommend death by mere majority.

In 1972, the U.S. Supreme Court ruled that the Eighth Amendment guaranteed that the death penalty must be imposed fairly and with reasonable consistency. The death penalty "smacks of little more than a lottery system," the court agreed.

"If you read the ABA's report, it's hard to conclude that Florida's system is anything more than just that, a lottery," McClain said.

McClain said the number of exonerations in Florida shows that the system is broken.

In Illinois, 13 exonerations between 1977 and 2000 led to a moratorium on executions. A subsequent investigation determined that four more death row inmates were innocent.

As a result, Illinois implemented comprehensive reforms and vacated all the death sentences imposed under the old system.

"Florida had even more exonerations," McClain said. "And, as the ABA report showed, what has Florida done about it? Nothing."

Graham Brink can be reached at brink@sptimes.com or 727 893-8406.

[Last modified September 29, 2006, 00:07:50]


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