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| Convicts in Race Vs. DNA Testing Deadline |
| By Miami Herald |
| Published: 08/06/2003 |
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Meanwhile, Barry Scheck, cofounder of the The Innocence Project at Cardozo Law School in New York, is trying to line up support from lawyers around the state to find a way to lift the ''arbitrary deadline,'' established by the Legislature two years ago. He characterizes the situation as a looming miscarriage of justice for possibly hundreds of inmates who could be cheated out of the chance the law was designed to provide. Under the law, passed in 2001 and sponsored by Sen. Alex Villalobos, R-Miami, anyone convicted of a crime has two years after a sentence becomes final to ask a judge to review DNA testing of physical evidence. Those convicted before the Villalobos law went into effect have until Oct. 1 to file their petitions. Villalobos says he's open to weighing the request for a time extension, but Gov. Jeb Bush is not considering such a move, said Jill Bratina, a spokeswoman for the governor. Around the country, such testing has exonerated 131 people in the past decade, according to the Cardozo Innocence Project, based at Yeshiva University. There should be no time limit on justice, critics say. ''When does innocence become irrelevant?'' said Bruce Rogow, a First Amendment expert at Nova Southeastern University in Davie. 'It's clear the state doesn't want the window to extend indefinitely, but what's reasonable?'' Florida legislators created the two-year window for testing after DNA exonerated Frank Lee Smith, a Broward County man who died of cancer on Death Row nearly a year before new testing cleared him of the 1985 rape and murder of 8-year-old Shandra Whitehead. Since then, another South Florida man, Jerry Frank Townsend, was exonerated by DNA after having served 22 years in prison for a rape and murder that he did not commit. High-profile national cases have brought increased attention to the issue of post-conviction testing. Last year, for instance, DNA disproved the convictions of five teenagers in the 1989 rape and beating of a Central Park jogger in New York City. TIME CONSTRAINTS Scheck and others say the enormous amount of work involved in culling through requests from inmates searching for legitimate cases, then documenting them to meet the requirements of the law, make the deadline unmeetable. In some cases, the inmates have been imprisoned for years and have no legal representation. When they do find a pro-bono lawyer willing to take on a case, the investigation includes tracking down trial transcripts, previous lawyers and evidence that in some cases dates back 20 years. A judge considering a petition would be required to decide whether the DNA evidence still exists, whether it would be admissible in court and whether there is a ''reasonable probability'' that a conviction would be reversed if the evidence were admitted at trial. The law gives the judge the leeway to deny the motion if the facts are not sufficient to justify a DNA review, and the prosecutor may appeal a judge's ruling to grant DNA review. NO COMPROMISE Scheck met with Villalobos at the end of the legislative session and asked for an emergency amendment to the statute, but no agreement has been reached. ''I'm in favor of extending the time period if there is a solid reason, scientific reason why it should be extended,'' Villalobos said. ``We won't let the testing go on indefinitely, there has to be some end to it. But you can't push for DNA testing to prove someone's guilty without using that same evidence to prove someone's innocence. You can't talk out of both sides of your mouth.'' But Bush's spokeswoman said he's not considering extending the deadline. ''The inmates have known the deadline has been coming for two years,'' Bratina said. ``The legislation is very clear. If an inmate believes they have a case, we encourage them to file their petitions before the deadline.'' Bratina did say Bush would remain committed to ensuring that in death penalty cases, an execution will not happen until he's satisfied that all DNA testing has been exhausted, regardless of the deadline. Defense lawyers and others say the deadline issue for those not facing execution isn't as simple as the governor's office is characterizing it. Catherine Arcabascio, codirector of the Nova Innocence Project at Nova Southeastern University in Broward, said the amount of investigation required to meet the elements in the statute is time-consuming and daunting. Arcabascio has a ''substantial backlog'' of cases. She is ready to file motions for DNA testing on 15 cases. ''We have 60 or so cases that we are still actively investigating, but believe we are going to try our best to file before the deadline,'' Arcabascio said. Then there are 40 cases still under investigation that probably won't be ready by that deadline. And there are 65 others that she hasn't even reviewed. More come in each day. She's working with 10 to 12 law students and two lawyers. In a makeshift office in a hallway of a law school building of Florida State University in Tallahassee, Jenny Greenberg of the Florida Innocence Project -- an offshoot of Scheck's New York group -- faces a 'similar crisis.'' WHITTLING CASELOAD The Cardozo project called in March and sent a list of 400 cases with which it needed help. Greenberg and four others spent five weeks in the basement of the attorney general's office determining how many of those cases had complete records. They whittled the caseload down to 300. They threw out 80 after determining DNA didn't play a part. They found 82 they thought had merit and should be further investigated. Of those, only 20 are complete. They are working furiously to track down trial transcripts and evidence in the other 62 to make the deadline. Another 100 of the original 400 sit in limbo, in the ''not-enough-information-yet'' pile. Raag Singhal, a death-penalty appeal expert and former president of the Broward Association of Criminal Defense Lawyers, said the deadline is wrongheaded and dangerous. ''The fact is, in most of the cases around the nation, there wouldn't have have been an exoneration if there was a deadline,'' he said. 'I don't understand what the governor's office is afraid of. The legislators wanted closure on these cases, so they created this window, but the window doesn't come with the appointment of competent counsel. Inmates have to find pro-bono lawyers to represent them. There's too much work for that type of window or deadline.'' |
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