Death row inmate requests stay on new evidence
Published: Friday, January 27, 2006 at 6:01 a.m.
Last Modified: Thursday, January 26, 2006 at 11:56 p.m.
TALLAHASSEE - A lawyer for death row inmate Arthur D. Rutherford asked the state Supreme Court on Thursday to stop his client's pending execution, saying there is new evidence that may show a prosecution witness actually murdered a Florida Panhandle woman.
Attorney Martin McClain argued that Rutherford should get a hearing to determine whether he actually killed Stella Salamon 20 years ago, saying Mary Heaton, who has a history of mental problems, told a former roommate and doctors that she was the killer. Rutherford is scheduled to die Tuesday.
"Clearly, she's the person that knows what happened," McClain told the justices. "Now that she's crazy, maybe it's the result of her involvement."
Assistant Attorney General Charmaine Millsaps argued a hearing was not justified because the new information, even if true, would not necessarily result in Rutherford's acquittal.
The justices heard Rutherford's case two days after the U.S. Supreme Court stopped the execution of another Florida convict, Clarence Hill, so it could consider whether a lower court erred by denying him a chance to challenge the state's lethal injection method as being unconstitutionally cruel. Hill had been strapped to a gurney at Florida State Prison and his execution was minutes away when he got his reprieve.
The Florida justices had previously denied Hill's lethal injection challenge. Rutherford's lawyers have made the same argument although Thursday's oral argument focused on the new evidence claim.
Rutherford cannot ask the U.S. Supreme Court for a stay until his state appeal is completed, but his attorneys are optimistic the courts will block his execution until Hill's case is decided.
"The chances are pretty good if we do what was done in Mr. Hill's case, it should lead to a stay," McClain said.
Rutherford, a Vietnam veteran and carpenter, was convicted of killing Salamon on Aug. 22, 1985, at her Santa Rosa County home, where he had done some repair work. She had been strangled or asphyxiated and her body was found in a bathtub.
Mary Heaton, who was never charged in the case, testified at Rutherford's trial that she was not there when Salamon was killed but that Rutherford later had her sign and cash a check stolen from the victim.
Investigators working for Rutherford's lawyers in December spoke with Alan Gilkerson, who once lived with Heaton. He is now in prison for aggravated assault and witness intimidation. He told them Heaton once had admitted to him that she had killed Salamon.
Heaton has denied that but also has said, contrary to her trial testimony, she was present and saw Rutherford kill the victim, according to a sworn statement from investigator Michael Glantz.
"That may increase Mary Heaton's guilt, but that does not undermine Rutherford's guilt," Millsaps told the justices. She said four other witnesses testified at trial that Rutherford told them he killed Salamon or had been planning to.
In questions to McClain, Justice Charles Wells said he was having "an impossible time" seeing how Heaton's conflicting statements would lead to Rutherford's acquittal and Justice Raoul Cantero questioned how anything Heaton says could be believed.
Other justices also had some tough questions for Millsaps.
"Somebody needs to get a grip on this," said Justice Harry Lee Anstead. "How can we make these evaluations without an evidentiary hearing?"
Millsaps argued that sworn statements already in the court record are sufficient.
Only six of the seven justices heard the case.
Justice Kenneth Bell is not participating because he had a role as a trial judge in earlier appeals by Rutherford.
Reader comments posted to this article may be published in our print edition. All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.
Comments are currently unavailable on this article