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The Florida Bar
www.floridabar.org
The Florida Bar Journal
March, 2013 Volume 87, No. 3
Gideon’s Legacy: Exonerating the Innocent

by Jan Pudlow

Page 18

During 35 years locked in prison for a child rape he did not commit, James Bain filed handwritten motions seeking DNA testing to confirm his innocence.

Five times Bain labored over handwritten motions, insisting his arrest at age 19 for the 1974 Lake Wales kidnapping and rape was a mistake, and DNA could prove it.

Five times Florida circuit judges denied his motions. Bain, who had no prior criminal history until this legal debacle, kept waiting and waiting in his prison cell, praying for help.

The fifth time, an appeals court overturned the trial court’s denial. When the Innocence Project of Florida, along with 10th Circuit Public Defender General Counsel Bob Young, stepped up to help Bain, finally he was granted the DNA testing.

This time, he had zealous members of The Florida Bar at his side, instead of fellow inmates giving him advice — what Bain called “chain-gang lawyers.”

This time, Bain’s plea of innocence did not fall on deaf ears, as just another amateurishly handwritten motion from yet another prisoner claiming he was railroaded.

In a refreshing spirit of cooperation, the state attorney agreed to DNA testing. The victim’s underwear was sent to a private laboratory in Ohio. After more than three decades, high-tech science was able to confirm that someone else snatched the nine-year-old boy from his bedroom and raped him in a nearby field.

The suggestive way the police conducted the photo lineup with the boy. The unreliable serology science used at trial. The ignored alibi that Bain was home with his sister. Everything used to wrongfully convict Bain was wiped away when DNA testing excluded him as the rapist who left the semen.

In a joint order, on December 17, 2009, Bain was declared “actually innocent,” and freed from his life sentence. With family members and his legal team smiling at his side, 54-year-old Bain walked joyously out of the Polk County Courthouse.

Pausing to use a cell phone for the first time, Bain’s call on this newfangled gadget was to his mother in Tampa to tell her, yes, he was free at last, and he was coming home.

“Our exonerees all had counsel at trial. But the hallmark of all of our guys is that, post-conviction, they would try to reach out to anyone who could file anything in the courts to vindicate themselves,” said Seth Miller, executive director of the Innocence Project of Florida in Tallahassee.

“The wisdom of Gideon bears that out in their experience. Only when they were helped with counsel through the Innocence Project or appointed a public defender did their cases begin to move. The system is not designed to avail relief when these exonerees were trying to proceed on their own.”

Gideon so epitomizes fairness that, in 2012, Seth and Katie Miller chose to name their first-born son Gideon, “so he’d grow up with a sense of justice.”

When Clarence Earl Gideon, an eighth-grade dropout and down-on-his-luck drifter, filed a handwritten petition from his Panama City jail cell, he could never have imagined the widespread ramifications of his actions that reaped the promise of effective assistance of counsel that continues to this day.

Fifty years ago, in 1963, a unanimous United States Supreme Court ruled in Gideon v. Wainwright that an indigent defendant charged with a felony was entitled to a lawyer at state expense. Through the years, that Sixth Amendment right to effective representation of counsel has been extended to post-arrest interrogations, juveniles charged with crimes, defendants charged with misdemeanors who can be locked in county jail, and mental health proceedings.

Gideon’s motion for a writ of certiorari to the U.S. Supreme Court seeking the right to appointed counsel would spark the creation of the statewide public defender system in Florida, and three decades later would launch a national movement to exonerate the wrongfully convicted with effective assistance of counsel through the Innocence Project.

Founded in 1992 at Benjamin N. Cardozo School of Law at Yeshiva University in New York, the Innocence Project nationwide has helped free 302 people exonerated through DNA testing, including 17 who were at one time sentenced to death.

Innocence Projects sprang up all around the country, including in Florida. On April 10, 2003, New York attorney Barry Scheck came to Tallahassee to announce the creation of the Innocence Project of Florida.

“You have a chance to make a huge difference in people’s lives,” Scheck told more than 30 Florida State University law students who wanted to volunteer with the project.

“Being responsible for an innocent person walking out of prison would be a highlight in the lives of most lawyers. You have a chance to see your legal career peak early,” Scheck told them.
Those FSU law students gathered in the basement of the Collins Building in downtown Tallahassee to help Jenny Greenberg, the first Innocence Project of Florida director, pore over thousands of pages of trial transcripts, searching for details of biological evidence — blood, semen, and saliva — that could be tested for DNA.

Of more than 1,000 Florida prisoners who wrote to the New York office for help, the Innocence Project decided to investigate about 400. Even before there was an office in Florida, the Innocence Project had cleared Frank Lee Smith of a 1985 murder, after he had already died of cancer in prison in 2000. And after serving 22 years of several life sentences for multiple murders in South Florida, Jerry Frank Townsend walked out of prison a free man in 2001.

Florida became one of 30 states that passed legislation providing a review process of prison inmates who believed they could prove their innocence through DNA testing. However, legislation passed during the 2001 session only allowed Florida’s prisoners until October 2003 to file a claim, and the fight was waged to extend the deadline.

Today, the Innocence Project of Florida has its own office at 1100 East Park Avenue in Tallahassee and has helped free 13 men, who collectively served 259 years in prison for crimes they did not commit.

But a group of leading Florida lawyers decided it wasn’t enough to right past wrongs. They wanted to learn from past injustices to help prevent wrongful convictions in the future.

In December 2009, Sandy D’Alemberte, a former ABA president who served on the Innocence Project of Florida’s Board of Directors and represented several exonerees seeking compensation from the legislature, petitioned the Florida Supreme Court to establish an “Actual Innocence Commission,” as had been done in Connecticut, Illinois, New York, North Carolina, Pennsylvania, Texas, and Wisconsin.

That petition held the signatures of 68 legal luminaries, including former Justices Harry Lee Anstead, Gerald Kogan, and Joe Hatchett; former ABA President Martha Barnett; and former Florida Bar Presidents Hank Coxe and John DeVault.

As grounds for creating the commission, D’Alemberte pointed to at least 11 innocent Florida citizens wrongfully convicted: Orlando Boquete, Larry Bostic, Alan Crotzer, Cody Davis, Wilton Dedge, Luis Diaz, William Dillon, Chad Heins, Juan Melendez, Smith, and Townsend. Right after the petition was filed, Bain became Florida’s 12th exoneree, and his 35 years in prison was the longest time served by any of the nation’s 246 DNA exonerees at that time. In 2011, Derrick Williams, who served 18 years for crimes he did not commit, became Florida’s 13th DNA exoneree.

“You are here to help protect the innocent. What could be more important than that?” then Chief Justice Charles Canady told the new Florida Innocence Commission — made up of diverse members including public defenders, prosecutors, law enforcement officials, defense lawyers, judges, legislators, and law professors — meeting for the first time in Tallahassee on September 10, 2010.

Soft-spoken Bain came to that first meeting, stood at the podium and introduced himself as “the one who was convicted for 35 years. If there are any questions, I will accept.”

After listening to details of Bain’s saga, Charlotte County Sheriff Bill Cameron, a member of the commission, summarized Bain’s case as “sloppy police work on the identification, a case that rested on the identification of a nine-year-old boy that was at best weak, and the physical evidence was inconclusive. And you had an alibi that was completely dismissed for whatever reason.”

Many commission members were astonished it took five motions for Bain to finally have his motion for DNA testing taken seriously.

“One of the problems is that judges routinely get literally dozens of these things every month. Some are typed. Most are handwritten. A lot of them you cannot read, nor can you make any sense out of,” Ninth Circuit Chief Judge Belvin Perry, chair of the commission, told the dismayed group.

“The problem you have to keep in mind is with all the junk you may receive, every now and then there’s a diamond in the rough. You always have to be on guard to look for that diamond in the rough.”

After meeting 13 times over two years, the Florida Innocence Commission issued its final report in June 2012. Chronicled in the 171-page report by Executive Director Les Garringer, these are the five top causes of wrongful convictions: eyewitness misidentification, false confessions, informants and jailhouse snitches, improper or invalid scientific evidence, and professional irresponsibility. Recommendations include amendments to criminal rules, statutory changes, new or amended jury instructions, and detailed funding requests.

“While studying the topic of professional responsibility,” the executive summary states, “it became crystal clear that a sixth significant cause exists that may lead to wrongful convictions: The underfunding of the criminal justice system in Florida.”

The commission highlighting the potential for injustice because of underfunding of the criminal justice system was most welcomed by Second Circuit Public Defender Nancy Daniels, a member of the commission and former president of the Florida Public Defender Association, who has been lobbying the legislature for years about crushing caseloads, low pay, and high turnover.

When caseloads of public defenders and court-appointed lawyers are so high that issues — such as vigorously investigating how a photo lineup was administered — are not adequately explored, innocent people can be convicted, the commission agreed.

Former prosecutor and Jacksonville criminal defense attorney Coxe, who served on the commission, says he is still nagged by this question: What about the wrongfully convicted who have no DNA in their case to test, such as an armed robbery?

“I worry that people get a false sense of comfort that DNA testing will solve the travesty of wrongful convictions,” Coxe said.

The best defense against wrongful convictions, agree Daniels and Coxe, is effective assistance of counsel that impacts on all of the reasons the innocent have been sent to prison for crimes they did not commit.

At the Chester Bedell Memorial Lecture at the Bar’s Annual Convention, Judge Perry detailed what went wrong in the cases of Florida’s DNA exonerees, and flashed the pictures of the exonerees on a large screen, including Bain’s smiling face.

“Ironically, they are the lucky ones who have been exonerated. Without question, there are other innocent men and women still on the inside. When we talk about the work of the Innocence Commission, when we talk about the good work of an attorney who seeks only what is true and what is just, this is what is at stake,” Perry said.

“If there is a silver lining to this dark cloud of injustice, it would have to be the dedication, persistence, and will of those who would not simply stand idle and allow this travesty to go unchecked. Behind each exoneree is one, maybe two, and sometimes a team of attorneys who did more than just advocate for the innocent. Their efforts served as a catalyst for the formation of the Florida Innocence Commission, and the work on that commission will forever change lives and preserve freedom. These individual lawyers kept their eye on the flame of justice. And, today, it burns hotter and brighter as a result.”

That flame of justice — that even someone locked in a cell without a dollar to their name deserves effective counsel — was sparked by Gideon 50 years ago.

[Revised: 02-27-2013]