Momentum builds for extending DNA testing

first_img September 1, 2005 Senior Editor Regular News Momentum builds for extending DNA testing Governor orders evidence preserved while legislators propose no innocence deadline Jan Pudlow Senior Editor With an October 1 deadline looming, greater opportunities for DNA testing for claims of innocence are advancing in all three branches of government.In the executive branch, on August 5, Gov. Jeb Bush signed Executive Order 05-160 to preserve physical evidence for post-conviction DNA testing, saying, “the destruction of this evidence could potentially enable the innocent to be wrongly convicted and the guilty to go free.”In the legislative branch, Sen. Alex Villalobos, R-Miami, and Rep. John Quinones, R-Kissimmee, both lawyers, are filing bills to do away with any deadline for post-conviction DNA testing. Taking the DNA testing matter even further is HB 71, filed jointly by Rep. Phillip Brutus, D-N. Miami, and Rep. Arthenia Joyner, D-Tampa, also both lawyers, which would create the Florida Commission on Innocence.Poised to work toward a judicial-branch solution is a team of pro bono attorneys at Carlton Fields — Sylvia Walbolt, chair of the firm’s board of directors in Tampa, former chief judge of the Second District Court of Appeal John Blue (whom Walbolt said has “been instrumental and a real inspiration to all of us”), and Nancy Henry in the Miami office.“Carlton Fields has joined with the Innocence Project to evaluate whether a petition needs to be filed with the court, similar to the one filed in 2003,” Walbolt said. “We are evaluating whether we need to do that in light of the governor’s executive order and the potential legislation. You could be in a position to have the evidence preserved, but you can’t file the petition for testing it. That is the problem. There are just not enough lawyers to assist people in seeking to get access to that evidence. The real question is whether the legislation takes care of it.”All of this DNA action has been heartening to Jenny Greenberg, director of the Florida Innocence Initiative in Tallahassee, where more than 1,200 cases are piled up waiting for evaluations for DNA testing on claims of innocence.“Though I knew the governor was looking at the issue, I had no idea that it was going to be successful,” Greenberg said. “I have to say I am absolutely thrilled. This is very, very big.”Fighting against the clock of the October 1 deadline, Greenberg said, “Maintaining the evidence is the most critical thing that needed to happen. We are nothing but grateful the executive branch exerted leadership on a criminal justice crisis. There is a tremendous sense of relief. The deadline is still coming. We are not out of the woods in any way, shape, or form. But when we do get out of the woods, we will have evidence to test.” Not the ‘Bird Road Rapist’ The governor’s action came two days after 67-year-old Luis Diaz was exonerated as the “Bird Road Rapist” after 26 years wrongly locked in prison. Those two events prompted a joint letter to the editor to Florida’s daily newspapers from Florida Bar President Alan Bookman and President-elect Hank Coxe, a criminal defense attorney:“Two major events took place.. . which served as reminders that Florida’s judicial system serves as a national model while remaining a complex and difficult process,” they wrote.“The first was the release of Luis Diaz in a Miami courtroom after he spent 26 years in prison. The tragic but remarkable result was the product of modern science coupled with a true commitment to justice by Florida lawyers Stephen Artusi, Stephen Warren, New York lawyers Barry Scheck and Colin Starger, and many others.“The second was the executive order by Gov. Jeb Bush, who should be loudly applauded for this action, to preserve evidence for future DNA testing which could lead to the exoneration of other innocent people, accompanied by a renewed commitment to identifying the true perpetrators of the crimes.” The 21st Century Fingerprint Exonerating the innocent and finding the true criminals is the impetus for Villalobos and Quinones to file their bills removing the deadline for DNA testing, an issue that has come before the legislature for extensions since Villalobos sponsored the first DNA testing bill in 2001.“I’m not going to ask for any more extensions, because in two years we will be here again,” said Villalobos, a former prosecutor and the Senate majority leader.“I think the public has accepted the science of DNA. The technology has gotten to the point that it is a scientific certainty. It is no longer a theory and the public understands what it is now and it works. It is nothing more than a genetic fingerprint. It is the 21st century fingerprint.”Both Quinones and Villalobos said their bills will support DNA testing even for those who entered no contest or guilty pleas, recognizing that even the innocent sometimes enter pleas in order to avoid harsher sentences or the death penalty.“We are going to make a match,” Quinones said of the bills. (Quinones’ bill is HB 61, and Villalobos’ bill, he said, is “still in the hopper.”) “I am committed to working with Sen. Villalobos.. . . I think there should not be an expiration on innocence.”Quinones said he is “very optimistic” after the governor signed the executive order and hopes the bills proposing the removal of the October 1 deadline for DNA testing could be added in the call for a special session expected this fall on slot machines. If not, Villalobos said, their bills would be retroactive to include anyone barred from filing for DNA testing because of the deadline.Allowing DNA testing for claims of innocence, Villalobos said, will bring finality to victims of crimes.“If I were a victim or the family member of a victim, finality to me means the guilty person is paying the price for the crime committed. Having the wrong person in prison serves no public purpose. First of all, it is immoral to have someone innocent in prison. Second, the guilty person is free. When I heard about Mr. Diaz, the first thing that came to mind is, ‘Oh, my God, he’s innocent!’ The second thing that came to mind is, ‘The real criminal is out there.’”Citing new DNA test results, Miami-Dade State Attorney Katherine Fernandez Rundle joined in a motion with the Innocence Project of the Benjamin Cardozo School of Law and co-counsel Holland & Knight to vacate five 1980 convictions of Diaz.The new DNA test results, according to the Innocence Project, supported Diaz’s claim that he was mistakenly identified by eight different victims who were attacked in eight different incidents.“This should be a landmark case in the history of eyewitness reform,”Barry Scheck, co-director of the Innocence Project, said in a prepared statement.“There are reforms police and prosecutors are using across the country that reduce error, protect the innocent, and help apprehend the guilty. It’s just good law enforcement. We hope in light of a case like Mr. Diaz’s that they are adopted rapidly everywhere.” Learning From Mistakes That would be one of the goals of HB 71, filed by Brutus and Joyner.The bill proposes the creation of a 12-member Florida Commission on Innocence, including an appointee by the Florida Supreme Court, who would be the presiding officer and would then appoint two members of the general public and two representatives from the academic community specializing in criminal justice and forensic science.The other seven appointees would be named by The Florida Bar, the Florida Public Defender Association, the Florida Prosecuting Attorneys Association, the Criminal Courts Steering Committee, the governor, and the chairs of both of the Democratic Caucus and the Republican Caucus of the House of Representatives.Their charge, according to the bill, would be to “thoroughly investigate all postconviction exonerations.. . . ascertain what errors or defects, if any, occurred in the investigation, prosecution, defense, or judicial administration of the case that led to the wrongful conviction.”Calling it “our dream bill,” Greenberg, of the Florida Innocence Initiative, said: “We all know that the real impact on our justice system is not freeing the relative handful, but the lessons these cases teach. Let’s go about enacting some remedies. A year after Wilton Dedge, we still have jailhouse snitches. This is the only ethical response to the devastation we are seeing in these cases.” Dedge Still Waits for Justice As for Dedge, the 43-year-old Florida man still waits for justice. After spending more than half his life in prison for a rape he didn’t commit, after 16 years that dragged by after he first asked for DNA testing that would finally exonerate him, he walked out of a cell in August 2004.A year later, Dedge does not feel free. “I’m still in a way doing time, because I’ve got the case on my mind every day,” he told the St. Petersburg Times. After frustrated attempts to garner compensation from the legislature, his pro bono attorney Sandy D’Alemberte is now suing the state, using the unique argument that the state took Dedge’s liberty, similar to the taking of property.Meanwhile, back at the legislature, Sen. Mike Haridopolos, R-Melbourne, has once again filed a claims bill (SB 72) to compensate Dedge.Once again in the House, Quinones, chair of the Claims Committee, said he will work toward a holistic approach to compensate the wrongly incarcerated, including health insurance, education, and jobs. Florida would have been the first in the nation to take that approach, Quinones said, noting that in July, Louisiana became the first state to embrace the holistic approach with a $150,000 cap on compensation.Quinones’s holistic approach bill failed in the last days of the session in May, when the Senate refused to concur with the House plan and it died in messages. The Senate’s Wrongful Incarceration Compensation Act would have paid a single applicant up to $5 million and likened compensating Dedge and others wrongfully incarcerated to condemnation of land in an eminent domain case. The original House plan had set a cap at the sovereign immunity of $200,000, which was later removed, and nixed the option of going to court to get a judgment and or going through the Attorney General’s Office in negotiations, leaving compensation decisions totally with the legislature.“I can’t tell you the specifics of the bill we will look at,” Quinones said, saying discussions include establishing a third-party agency to review applications and “not necessarily leave it up to the legislature. That was the concern of the Senate. We are willing to compromise and make changes to get us closer to the Senate, including compensation for Wilton Dedge.” Momentum builds for extending DNA testinglast_img

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