P R E S S R E L E A S E
from
F L O R I DI A N S FOR A L T E R N A T I V E S
TO THE DEATH PENALTY (FADP)
30 January 2006
CONTACT:
Abe Bonowitz for FADP: 561-371-5204
Mark Elliott for Amnesty International USA: 727-215-9646
FLORIDIANS URGE CLEMENCY FOR RUTHERFORD
Floridians for Alternatives to the Death Penalty (FADP) today
launched a last minute appeal to Governor Bush to ask him to stay the
execution of A.D. Rutherford, which is currently scheduled for 6pm
Tuesday, January 30, 2005. In an e-mail sent to FADP members and
other Floridians interested in the pursuit of fairness and justice,
the organization quoted Florida Supreme Court Justice Anstead's
chilling dissent in Friday's Florida Supreme Court denial of a new
evidentiary hearing to examine claims that another person has
confessed to the crime.
"Here we have a Supreme Court justice pointing out the fact that we
may be executing an innocent person," said Abe Bonowitz, Director of
the statewide group based in Gainesville. "We urge Governor Bush to
stay this execution, and to convene his Clemency Board and grant
clemency to AD Rutherford by commuting his sentence to life without
parole, which is the sentence received by more than 99% of murderers
in Florida."
The e-mail action alert is below.
**************
sent via e-mail on 30 January 2006 to Florida Activists
PLEASE TAKE ACTION TODAY!
THE FOLLOWING ACTION IS BASED ON NEW INFORMATION THAT HAS BEEN
DEVELOPED IN THE PAST FEW DAYS: PLEASE TAKE ACTION TODAY!
Support for Clemency to Life in Prison Based on Possible Innocence
for A.D. Rutherford - Scheduled for Execution in FL Tuesday 31 Jan 2006
As of this morning, 30 January 2006, the Federal District Court has
refused to grant a stay to Arthur Dennis Rutherford, and he is
proceeding toward his scheduled execution at 6:00pm Tuesday, 31
January 2006. What no one is discussing is the fact that this case
may well be Florida's version of the Herrera case in Texas, where the
courts allowed a man to be executed even though another man had
confessed to the murder -- all because procedural bars prevented a
hearing on the new evidence.
The dissenting opinion in Herrera said, "The execution of a man who
can show he is innocent comes perilously close to simple
murder." The majority opinion in Herrera said clemency, not the
appeals courts, is supposed to take care of problems of factual innocence.
Clemency?
What's clemency? Clemency is the power to grant mercy held by the
executive in government, in this case, Florida Governor Jeb
Bush. The dictionary defines Clemency as "1 a : disposition to be
merciful and especially to moderate the severity of punishment due."
Florida used to have a functioning clemency system in death cases.
Six cases of clemency in death cases were granted from 1976 until
1983. In two such cases, the reason for clemency was the possibility
of innocence: Learie Leo Alford (1979) and Jesse Rutledge (1983).
Florida has not had a death sentence commuted to life through
clemency since 1983. That's back when Governor Graham was actually
looking at cases thoroughly before signing death warrants and
commuting death sentences to life
imprisonment if there was a possibility of innocence. That's how
clemency is supposed to work. The story goes, however, that the press
lambasted Graham for taking his clemency responsibilities seriously
and branded him as "Governor Jell-o".
Graham stopped granting clemency in death cases and no other Florida
Governor has granted clemency in a death case since then. Clemency,
the safety valve to prevent execution of the innocent in Florida, is
not even functioning at all.
Arthur Rutherford's daughters are begging Governor Bush to grant
clemency, to commute Rutherford's death sentence to life
imprisonment. There are many reasons that such an appeal should be
considered even if Rutherford is guilty. He was a decorated Vietnam
Veteran who returned with PTSD and Agent Orange sickness; he was a
single parent raising his children by working as a carpenter and,
almost unheard of, since coming to death row almost twenty years ago,
he has continued as the parental figure in his daughters' lives
through mail and visits. Above and beyond all that, his death
sentence was handed down by a jury vote of 7 to 5. One vote different
and he would have been given a life sentence!
POSSIBILITY OF INNOCENCE
But there's an even more compelling reason for clemency in
Rutherford's case. There is a possibility that someone else committed
this crime -- a severely mentally ill woman, Mary Heaton, who was the
state's star prosecution witness at the trial. Friday night (January
27) the Florida Supreme Court refused to allow an evidentiary hearing
to find out if the state's star witness actually committed the
murder. The lone dissent by Justice Anstead is chilling and is quoted
in full below.
Governor Bush has the power to refer this case to the Clemency Board
and to set it on the next agenda or to call a special meeting. He
also has the power to enter an Executive Stay on the execution
pending that meeting. How can we allow that not to happen? Please
read the following dissenting opinion of Justice Anstead and do what
you can to encourage a grant of clemency to life in this case.
CONTACT GOVERNOR JEB BUSH:
Phone: 850-488-7146
Fax: 850-487-0801
_______________________________________________________
Supreme Court of Florida No. SC06-18
ARTHUR DENNIS RUTHERFORD, Appellant, vs. STATE OF FLORIDA, Appellee.
[January 27, 2006]
.....
- pages 32 - 34 -
ANSTEAD, J., concurring in part and dissenting in part.
I concur in the majority opinion in all respects with the exception
of its affirming the denial of an evidentiary hearing on the
appellant's claim of newly discovered evidence and his request for
discovery related to that claim. There can hardly be a more serious
claim relating to a defendant's guilt or innocence than a claim that
someone else has confessed to the crime for which the defendant was
convicted and sentenced to death. With the possible exception of DNA
evidence, the confession of another person raises the most compelling
and fundamental doubt about a prior determination of guilt. Here, we
have not only a claim that someone else has confessed, but we have
sworn testimony attesting to its validity.
Under our postconviction rules we must accept Rutherford's claim as
true and direct an evidentiary hearing on its validity unless the
record conclusively demonstrates that the claim is not valid. See
Fla. R. Crim. P. 3.850-3.851. There is a dramatic, and obviously
substantial, difference between approving an outcome determined by a
trial court based on a contested hearing where all of the evidence
and the testimony of witnesses is thoroughly scrutinized, compared to
a summary conclusion on a cold record that someone else's confession
to the crime could not possibly make a difference to the
determinations that the defendant alone was guilty of this crime and
that he was deserving of the death penalty. On this record, we can
hardly evaluate the credibility and weight of the sworn evidence that
someone else may have committed this crime. That is the purpose for
which an evidentiary hearing before the trier of fact, i.e., the
trial court, is specifically designed. We should not summarily brush
aside such a serious claim when we cannot know how credible a case
may be put before the trial court.
The majority's ruling on the discovery issue poses similar, if not
greater concerns, because it suggests that no matter what Heaton's
treatment records reveal, including presumably her possible admission
of direct involvement in the murder, it would have made no difference
to the jury's assessment of Rutherford's guilt or any juror's vote
for death. It is particularly disturbing that the majority would
assert with unjustified certainty that "there is no probability that
this evidence would result in imposition of a sentence less than
death on retrial." The majority has failed to consider that even
without this new and substantial evidence of Heaton's involvement in
the crime, Rutherford's jury recommended death by the narrowest of
margins, seven to five, only one vote away from a sentence of life.
It is also difficult to reconcile the majority's summary rejection of
an evidentiary hearing when we know that Rutherford has presented an
identical claim challenging Florida's protocol for execution by
lethal injection as that raised by Clarence Hill, and we know that
the United States Supreme Court has stayed Hill's execution while
that Court considers that claim. It would not be unreasonable to
expect that Rutherford would be entitled to a similar stay, and hence
his pending execution would be stayed for several months, during
which a proper evidentiary hearing could be conducted.
***************
SENT BY:
Abraham J. Bonowitz
Director
Floridians for Alternatives to the Death Penalty (FADP)
800-973-6548 http://www.fadp.org <fadp@fadp.org>
PMB 335, 2603 DR. Martin Luther King Jr. Hwy
Gainesville, FL 32609
Floridians for Alternatives to the Death Penalty works for restorative
justice in the form of effective alternatives to the death penalty. It
does so by
# supporting and coordinating the work of organizations and individuals
# educating and energizing the general public and state legislators
# supporting the many persons affected by capital crime and punishment
# advocating specific legislative improvements
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