Policy fight roils death row cases

Lawyers say they should have been told about a document that details how the state executes.

Published October 18, 2006

In August, the Department of Corrections issued a nine-page directive detailing exactly how to execute death row inmates.

On Tuesday, defense attorneys for a man scheduled to die this evening saw the document for the first time. They said it came as a complete surprise.

The lawyers launched two 11th-hour appeals that they hoped would become the latest obstacle in Florida's long and troubled history of putting criminals to death.

Both appeals were denied.

Unless the U.S. Supreme Court gets involved, which is unlikely, the execution of convicted killer Arthur D. Rutherford will go forward tonight.

It also becomes more likely that Danny Rolling, the Gainesville serial killer and perhaps Florida's most notorious death row inmate since Ted Bundy, will be executed next week.

Still, the execution procedure document prompted a flurry of motions for much of Tuesday.

Lawyers for Rutherford, who is condemned for the 1985 murder of a Milton woman, said the document improperly altered the lethal injection protocol.

Worse, the defense lawyers said, the state never revealed those changes to defense lawyers who were challenging lethal injection as cruel and unusual punishment. Marty McClain, one of Rutherford's lawyers, plans to add the issue to appeals that he has made to the U.S. Supreme Court.

"This is unethical. It's unacceptable. It's outrageous," McClain said. "They have made changes in secret. I would like to think that this would shock the courts."

But state Department of Corrections spokesman Robby Cunningham said no changes were made to the lethal injection protocol since the state switched from the electric chair to lethal injection in 2000.

He said the new document simply "spells out the procedure that already existed into writing."

"It's just a document that really is a compilation of all the procedures," he said. "The bottom line is nothing has changed."

McClain said the document, which DOC Secretary James McDonough signed Aug. 16, calls for two syringes filled with 2.5 grams of a painkiller to be administered to the inmate.

The documents outlining the procedures before Aug. 16 didn't give an exact amount, though the courts have understood it to be at least 2 grams.

Defense lawyers have argued that the painkiller wears off before the inmate dies, causing excruciating pain.

Cunningham said the department always has used that amount.

"Nothing has changed; protocol has not changed," he said. "Why should there be cause for alarm?"

Death penalty defense lawyers have been fighting lethal injection in several states, including Florida.

In January, the U.S. Supreme Court issued a last-minute stay for convicted Florida cop-killer Clarence Hill while he was strapped to a gurney, just minutes from death.

The high court agreed to hear arguments about whether Hill could challenge lethal injection in a federal civil rights lawsuit.

The justices unanimously agreed that Hill could pursue that avenue of appeal, though a lower federal court later denied the argument.

Gov. Jeb Bush re-activated Hill's death warrant Aug. 17, the day after McDonough signed the execution procedures document. Hill was executed Sept. 20.

Hill's lawyer, D. Todd Doss, learned of the Aug. 16 document on Tuesday.

"I'm pretty irate about it," he said. "They changed it the day before they sent out the new execution date and they didn't tell anybody? Once they changed it, they have an obligation to come and tell the court. And now Clarence Hill is dead. I have some righteous indignation going on today."

Six of the seven state Supreme Court justices agreed Tuesday night that there was nothing in the Aug. 16 document that would cause them to believe the procedures were unconstitutionally cruel and unusual. Justice Kenneth Bell didn't participate.

However, Justice Harry Lee Anstead expressed some displeasure with the state.

"I am troubled ... by the fact that the State has not at all times made its execution procedures and protocols a matter of public record," Anstead wrote. "There has been no public evidentiary hearing focused on the purpose and effectiveness of the State's procedures, and on what actually takes place during the course of an execution by lethal injection."

Baya Harrison III, Rolling's lawyer, said Friday afternoon that he was keeping a close eye on Rutherford's case.

"We're going to follow this very carefully," Harrison said.

Chris Tisch can be reached at tisch@sptimes.com or 727 892-2359.