The lethal injection reply in Arthur Rutherford

IN THE SUPREME COURT OF FLORIDA
CASE NO. SC06-2023
ARTHUR DENNIS RUTHERFORD,
Petitioner,
v.
CHARLES J. CRIST, Attorney General of Florida,
JEB BUSH, Governor of Florida, JAMES R. MCDONOUGH,
Secretary, Florida Department of Corrections,
Respondent.

REPLY TO RESPONSE TO PETITION FOR ALL WRITS

LINDA McDERMOTT
Florida Bar No. 0102857
McClain & McDermott, P.A.
141 N.E. 30th Street
Wilton Manors, FL 33334
(850) 322-2172
MARTIN J. MCCLAIN
Florida Bar No. 0754773
McClain & McDermott
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford
1
ARGUMENT IN REPLY

Respondents have had sixty (60) days to prepare for today -
to plan their defense for when their secret was exposed.1 Mr.
Rutherford’s counsel has had 3.5 hours to review the new lethal
injections procedures and present a response to the Respondents’
argument, while preparing pleadings for other courts in which
litigation is pending. Though counsel’s time has been short,
though he has been denied the opportunity to consult with
experts, though he has been denied the access to other public
records regarding the promulgation of the new lethal injection
procedures, though he has been denied discovery and the
opportunity to depose those who promulgated the new lethal
injection procedures and ascertain the standard why, where, when,
who and how questions, there are certain glaring, obvious, and
substantial changes in the protocol.2
1In Jones v. Butterworth, 691 So. 2d 481 (Fla. 1997), this
Court exercised jurisdiction.

In order to exercise jurisdiction,
this Court of necessity found it had jurisdiction - otherwise the
opinion and the resulting proceedings would be a nullity.
Respondents’ argument in this regard is not well taken.

2The new protocol requires the warden to “select two (2)
executioners who are fully capable of performing the designated
functions to carry out the execution.” The old protocol did not
provide the warden with this discretion. This change causes many
questions and concerns: What capabilities need an executioner
possess? Does a “capable” individual possess any medical
training?
The new protocol also requires the warden to administer a
presumptive drug test and alcohol test to the executioners. The
old protocol did not include this test. And, if one or both of
the executioners is disqualified, the warden “will continue to
select and test as many additional executioners as is necessary
2
The new protocol requires that a “designated member of the
execution team will purchase, and at all times ensure a
sufficient supply of, the chemicals to be used in the lethal
injection process. The designated team member will ensure that
the lethal injection chemicals have not reached or surpassed
their expiration dates. The lethal chemicals will be stored
securely at all times . . . ”. The old protocol did not provide
for maintenance or storage of the chemicals.3
The new protocol requires that after the physical
examination of the condemned, “[i]f the team member(s) reports an
issue that could potentially interfere with the proper
administration of the lethal injection process, the warden will
consult with any or all of the members of the execution team and
to ensure the presence of two qualified executioners”. The old
protocol did not provide the warden with this discretion.
The new protocol requires that “simulations of the execution
process” be performed on a quarterly basis. The old protocol did
not provide for any simulations.
The new protocol requires that the warden to ensure “that
all members of the execution team and other involved staff have
been adequately trained. . . ”. The old protocol did not provide
the warden with this discretion or responsibility. This change
causes many questions and concerns: What training is performed?
Are there guidelines for the training? What happens, i.e., is
disclosed or prepared if training procedures do not proceed as
planned?
The new protocol calls for the use of a checklist. The old
protocol did not provide for the use of checklist. Where is the
checklist from the execution of Clarence Hill?
3This change causes many questions and concerns: How will the
chemicals be stored so that they are secure? What qualifications
does the execution member have to determine whether the chemicals
have surpassed their expiration dates?
3
resolve the issue.” The old protocol did not provide for a
determination of issues that could interfere with the lethal
injection procedure and for a process to resolve those issues.4
The new protocol calls for two hours prior to the execution
to “prepare the lethal injection chemicals. The old protocol did
not provide for preparation of the chemicals.5 The new protocol
calls for “A designated member of the execution team” to “explain
the lethal injection procedure to the inmate and offer any
medical assistance or care deemed appropriate. The old protocol
4This change causes many questions and concerns: What type of
issues could interfere with the proper administration of the
lethal injection process? Will the condemned and/or his attorney
be notified? What resolutions will be considered in regard to
the problems? Will the condemned and/or his attorney be
notified?

5This change causes many questions and concerns: Does it matter
that the chemicals are prepared two hours prior to the execution?
Who mixes the chemicals? What is his/her training?
4
did not provide for any medical assistance.6 The new protocol
calls for a central venous line to be placed with or without a
venous cut-down if peropheral venous access cannot be achieved.
The old protocol did not provide for a cut-down.7

6This change causes many questions and concerns: What type of
medical assistance is contemplated? Does this individual have
the required medical training and ability to administer the
medical care?

7This change causes many questions and concerns: Who will do
the cut-down? How will it be done? When will it be done?
5
The new protocol calls for the administration of 2 syringes,
each with 2.5 grams of sodium pentothal. The old protocol
contained no discussion regarding the drugs or the amounts to be
administered.8 The new protocol calls for the administration of
100 mg of pancuronium bromide. The old protocol did not provide
for this amount of pancuronium bromide.9 Nor did the testimony
elicited in the Sims hearing. The new protocol calls for the
administration of 2 syringes of potassium chloride, each of
120mEq. The old protocol did not provide for this amount of
potassium chloride. Nor did the testimony elicited in the Sims
hearing. Contrary to what the State has represented the amounts
of the three drug protocol have changed.10
Respondents protestation that the newly adopted lethal
injections procedure is really not new or different smacks of the
child with cookie crumbs around his mouth who indignantly asserts
that he did eat the cookies missing from the cookie jar.

If it
is not a substantial revision, why was it not disclosed.

If
8The drugs and their amounts was discussed in the testimony
during the Sims evidentiary hearing and this Court indicated its
understanding was the amount of sodium pentathol to be
administered was 2 grams. The change in the doseage causes many
questions and concerns: Is this enough sodium pentothal?
9This change causes many questions and concerns: Why use
pancuronium bromide at all?

10These are not the only changes from the old protocol to the
new protocol, but, due to the limited time in which file his
reply, Mr. Rutherford has done his best to demonstrate that there
are significant differences between the old and new protocols.
6
Respondents truly believed that it was the same old procedure,
why did they not hand out copies on August 16th to one and all.

The new lethal injection procedure is but the tip of the ice
berg, that which we see above the waterline.

What we don’t yet
know is that which is still submerged - the real story, why, what
where, when how, and who.

And because we do not know the rest of
the story, we don’t know what else Respondents are withholding
that may demonstrate that there is or has been a problem with
Florida’s method of execution.

There are many unanswered
questions: Why were the changes made? What information was
relied upon in making the changes?

Why was this information
hidden from Mr. Rutherford and his counsel?

CONCLUSION
Mr. Rutherford respectfully requests the relief stated in
his petition.
Respectfully submitted,
______________________
LINDA MCDERMOTT
Fla. Bar No. 0102857
_______________________
MARTIN J. MCCLAIN
Fla. Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford
7
8
I HEREBY CERTIFY that a true copy of the foregoing Petition
Seeking to Invoke this Court’s All Writs Jurisdiction has been
furnished by United States Mail, first class postage prepaid, to
Carolyn Snurkowski, Deputy Attorney General, Office of the
Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-
1050; Charmaine Millsaps, Assistant Attorney General, Office of
the Attorney General, The Capitol, PL-01, Tallahassee, Florida
32399-1050, on October 17, 2006.
LINDA MCDERMOTT
Fla. Bar No. 0102857
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing petition has been
reproduced in a 12 point Courier type, a font which is not
proportionately spaced.
LINDA MCDERMOTT
Fla. Bar No. 0102857