‘You are here to help protect the innocent. What could be more important than that?’
By Jan Pudlow
To the distinguished members of the new Innocence Commission, DNA exoneree Alan Crotzer said: “There are some big minds in here. But please, don’t let it be paralysis of analysis. Make it happen. The system is broken. Fix it. You can fix it. You have that power now.”
Crotzer — who spent 24 years, six months, 13 days, and four hours in prison for two rapes he did not commit until he was exonerated by DNA evidence in 2006 — had just endured an hour listening to a debate on whether the words “exoneration cases in Florida based on DNA testing,” followed by a list 12 exonerees’ names, should be part of the new group’s mission statement.
It was the first order of business of the new commission September 10 in Tallahassee — petitioned for creation by former ABA President Sandy D’Alemberte and appointed by Florida Supreme Court Chief Justice Charles Canady — to look into the causes of wrongful convictions to prevent them from happening in the future.
Fifth Circuit State Attorney Brad King raised the issue:
“I say that simply because I haven’t had the opportunity to review all of those cases to know for a fact that those people are innocent versus there wasn’t sufficient other evidence to prosecute them,” King said.
“I see a difference between those two things. And I don’t believe we ought to be putting our stamp, our imprimatur, claiming or saying that somebody was innocent when none of us have looked at the record.”
Former ABA President Martha Barnett, of Holland & Knight, said she thought each of the individuals “was actually found innocent, exonerated by DNA.”
University of Florida College of Law Professor Kenneth Nunn added: “We are not saying these are individuals who are angels of the Lord, shall we say. But we are saying they are entitled to rely on the presumption of innocence that all American citizens are entitled to,” because they have not been proven guilty. Exoneration, Nunn said, “is the correct legal term for the status of affairs we are talking about.”
But if those words are left in the mission statement, King continued, “it is fair to say somebody at one point is going to raise that we determined they were exonerated and they were innocent. And I just don’t think we should put this body in that position.”
Eighteenth Circuit Judge J. Preston Silvernail, who ordered the DNA testing that freed exoneree Wilton Dedge, said he agreed with King that “exoneration carries with it some indication that someone had been affirmatively proved innocent by that term. I think it would endanger our work. . . . What if it turns out in one of these cases that evidence comes forward, so then exoneration is not appropriate for that particular case?”
Professor Nunn offered a friendly amendment to replace “exoneration” with “cases in Florida where convictions have been reversed based on DNA testing.”
Second District Court of Appeal Judge Patricia Kelly said she preferred not to change the language at all, but if they did, it should match the administrative order creating the commission that says “individual cases where innocence has already been acknowledged.”
King suggested saying “cases in Florida that have been reversed” and strike DNA altogether.
At that point, Second Circuit Public Defender Nancy Daniels voiced her objection: “I hate to see us from the very first meeting back down on what we’re here about: innocent people going to prison for crimes they did not commit.”
Former Florida Bar President Hank Coxe, a Jacksonville criminal defense attorney, added: “I just think an awful lot of time and energy is being spent on what label to put on these individual cases. The third paragraph of the court’s order is that we are to do ‘a comprehensive examination of the causes of wrongful conviction.’ Does that mean Mr. King’s actual innocence? Does that mean Mr. Nunn’s legal innocence? I don’t think we need to take our time. Let’s just agree to start looking at these cases, not worrying about whether they are actually innocent or legally innocent, and determine that they were wrongfully convicted and find out why and what those reasons are, and if there is a systemic problem.”
Sen. Joe Negron, R-Palm City, chair of the Judiciary Committee, said: “I would move to take the sentence out. It’s causing too many problems.”
And that was what the commission eventually decided, in a 14-6 vote.
Assistant Attorney General Carolyn Snurkowski also wanted to change “wrongful incarceration” to “erroneous incarceration” because wrongful “connotes a purposeful act, rather than a mistake or error or insufficient evidence.”
“Some are purposeful and intentional. Mine was,” said Sen. Gary Siplin, D-Orlando, an attorney arrested in 2006 when prosecutors alleged the senator made his staffers help his campaign on state-paid time. The following year, the Fifth DCA reversed Siplin’s grand theft conviction and ruled he could not be retried.
Eleventh Circuit Judge Israel Reyes, liaison between the commission and the Bar’s Criminal Procedure Rules Committee, moved the phrase be amended to say “wrongful or erroneous incarceration” so both are covered; Siplin seconded it, and everyone voted for that change, except Judge Kelly.
While the four-hour meeting got off to an arduous start, there were inspiring moments.
Chief Justice Canady told the commission: “You all bring valuable experience and unique perspectives to the task that is at hand. That task is an extraordinarily important task, where you are here to help protect the innocent. What could be more important than that?”
Soft-spoken James Bain, who had no criminal record until his wrongful conviction and now lives with his mother in Tampa, came to the podium and introduced himself as: “the one who was convicted for 35 years. If there are any questions, I will accept.”
He had just turned 19 when he was arrested for raping a 9-year-old boy, and he was 54 when DNA evidence finally freed him in 2009, after it took five motions asking for DNA testing sent from prison by inmates Bain called “chain-gang lawyers.”
After summarizing Bain’s case, Ninth Circuit Chief Judge Belvin Perry, chair of the commission, told the group: “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. 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. The question that comes to me: Why did it take five times to get DNA testing?”
After listening to details of Bain’s saga, Charlotte County Sheriff Bill Cameron noted the errors in Bain’s arrest occurred in 1974.
Cameron summarized Bain’s case as “sloppy police work on the identification, a case that rested on the identification of a 9-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 reasons.
“From the police to the defense attorney to the prosecutors and the judges and the jury, this entire case made it all the way to a conviction,” Cameron said.
“With us sitting here in 2010, that case today probably wouldn’t even get filed on. Maybe Mr. Bain can tell me: Was race a consideration?”
“Yes, it was,” Bain answered. “I had one minority out of six on the jury,” and that minority was not the foreperson.
Chief Judge Perry said that some of the procedures in place in the ’70s and ’80s “more than likely don’t exist now,” but “some processes in place now need to be tweaked. If we are honest, fair, and lay our cards on the table, and don’t be territorial, we can make improvements in the system.
“When your freedom is taken away and then you are thrust into prison and you cry and no one hears you, that is a helpless feeling,” Perry said. “Night after night, you are locked in a cell and no one hears you. It shakes a lot in you. I hope we, at the end of the day, can leave the process better than we found it.”
He asked the commission members to forget their individual roles as defense lawyers, civil lawyers, prosecutors, lawmakers, judges, professors, and law enforcement officials.
“We’re all just looking at one thing — at least I am: the concept of justice.”
Contributing factors in wrongful convictions
Of the country’s first 225 DNA exonerations conducted by the Innocence Project (there are now 258 DNA exonerees nationwide), Ninth Circuit Chief Judge Belvin Perry, chair of the Innocence Commission, listed the contributing causes of wrongful convictions:
• 77 percent had eyewitness misidentification;
• 52 percent had improper forensic evidence;
• 23 percent had false confessions or admissions;
• 16 percent had informants and snitches standing to gain from their testimony.
The group’s next meeting in Tampa in November will include a presentation from the Florida Police Chiefs Association in the area of eyewitness misidentification.
Funded by the Legislature with $200,000 from the Mediation Trust Fund and $114,862 from The Florida Bar Foundation, the commission’s final report is due June 2012.
For more information, go to www.flcourts.org/gen_public/innocence.shtml.