Court rejects challenge to death penalty

By NATHAN CRABBE

Sun staff writer

The Florida Supreme Court on Tuesday rejected claims that newly released information on the death penalty should delay an execution scheduled for today.

Now attorneys for condemned killer Arthur Rutherford will turn to the federal courts in a last-ditch effort to stop the execution.

The case could provide an indication whether Gainesville serial killer Danny Rolling's execution goes forward as planned next week.

Rutherford is scheduled to be executed at 6 p.m. today at Florida State Prison in Raiford. His attorney, Linda McDermott, said a document released this week reveals the state made secret changes to the lethal injection process.

"At a minimum, we need to have the opportunity to review this," she said.

The new details are part of a document adopted by the Florida Department of Corrections in August, which had previously not been made public. The document for the first time outlines the exact amount of drugs used in executions and provides more information about the procedure than previously revealed.

Corrections Secretary James McDonough intended the document to provide transparency in the execution process. The document doesn't make any major changes to the process other than requiring drug tests of executioners, said Robby Cunningham, department spokesman.

"It really just spelled out the process that already existed," he said.

The Florida Supreme Court agreed, rejected Rutherford's petition by a 6-0 margin. The seventh justice, Justice Kenneth Bell, recused himself from the case.

"Our review of the current lethal injection procedures ... reveals nothing that would cause this court to revisit our previous conclusions that procedures for administering the lethal injection as attested do not violate the Eighth Amendment's prohibition on cruel and unusual punishment," the court wrote in its opinion.

Rutherford's attorneys will now turn to the 11th Circuit Court of Appeals and the U.S. Supreme Court to try to stop the execution. A ruling in his favor could also delay the scheduled Oct. 25 execution of Danny Rolling, who murdered five Gainesville college students in 1990.

Rolling's attorney, Baya Harrison, said he'll push the same issues in that case."We're going to piggyback on anything that the Rutherford legal team does," he said.

Attorneys across the country in recent months have claimed the lethal injection process is flawed and could cause extreme pain. Many have cited a study by University of Miami medical school physicians, which found that post-death blood concentrations of anesthetic were lower than required for surgery in 43 of 49 executed inmates in other states.

David Lubrasky, chairman of the school's anesthesiology department and study co-author, said the new document shows that massive amounts of drugs are being used in Florida executions. But he said that doesn't mean the drugs are being administrated by trained medical professionals.

"In my hands, I could kill you with them," he said. "In the hands of someone who didn't know what they were doing, it could be a different story."

Rutherford, 57, was sentenced to death for the 1985 drowning of a 63-year-old Milton woman in her bathtub. He had been scheduled to be executed in January, following condemned cop killer Clarence Hill.

The U.S. Supreme Court halted both executions, later ruling Hill could use federal civil rights law to claim lethal injection was cruel and unusual punishment. But the court last month allowed Hill to be executed before those claims could be heard.Attorney Todd Doss of Lake City, who represented Hill, filed a request Friday for information on the lethal injection procedure. He received the document Monday outlining the procedure.

He said the state had an ethical duty to release the information before Hill's execution.

"To say you're doing justice while hiding something like this is a farce," he said.Carolyn Snurkowski, assistant deputy attorney general for the state, said major aspects of the lethal injection procedure haven't changed. She said the types of drugs and order in which they are administered have stayed the same since the state instituted lethal injection for the death penalty in 2000.

"There's nothing new in there," she said.

In its filing to the Florida Supreme Court, Rutherford's attorneys say several changes to the procedure are substantial. They include a requirement that a member of the execution team buys and maintains the lethal drugs, more detailed descriptions about the amount of chemicals used in executions and an alternate procedure if a vein can't be located.

While the court rejected the petition, Justice Harry Lee Anstead said in a separate opinion that he was troubled by the fact that the state hadn't made its execution procedure public and no hearings have been held on what takes places during an execution.

"Now that this method of execution has been in place for a number of years we would all benefit by such a hearing," he wrote.