The Florida Bar News - February 15, 2010

Board supports creation of an ‘Actual Innocence Commission’
By Jan Pudlow
Senior Editor

When David Rothman looks into the eyes of Florida’s wrongfully convicted, he can’t imagine what goes through their minds.

“But I know what is going through my mind. It’s anger, frustration, and such a sadness that someone can spend most of their life in prison knowing they. . . are innocent. . . . These folks spent decades in prison knowing they are innocent, and there’s nothing out there to prove it until the Innocence Project came along.”

Rothman — a Miami criminal defense attorney serving on the board of directors of the Innocence Project of Florida — urged his fellow Florida Bar Board of Governors members to support the project’s work, funded largely by The Florida Bar Foundation.

And, at the board meeting in Tallahassee January 29, Rothman made a motion that “we do everything possible” to support a petition pending at the Supreme Court for a rule to establish an Actual Innocence Commission.

The purpose, Rothman said, is “so that we can find out, No. 1, why innocent people are being convicted in our courts, and No. 2, why the true guilty people have not been caught.”

The motion passed unanimously.

Before the vote, Sandy D’Alemberte briefly described the petition he filed in December signed by 68 lawyers, including Rothman. (See story in January 1, 2010, News).

“Essentially, we are asking the court to adopt by rule a commission composed of people who all have a stake in the criminal justice system — prosecutors, law enforcement officials, defense counsel, judges, everybody who has a stake in the criminal justice system — and study the exonerations that have been achieved so far,” D’Alemberte said.

Seth Miller, executive director of the Innocence Project of Florida, told the board about the most recent of Florida’s 11 DNA exonerations since 2001. The actual innocence of James Bain was proven on December 17, 2009, in Polk County. Bain, with no prior criminal record, wrongfully spent 35 years in prison for the rape of a young boy in 1974.

“His case has been emblematic of DNA exonerations in Florida and nationwide,” Miller said. “He was misidentified by the little boy. There was fraudulent science used in his case. And with all the cases we have looked at, there are causal wrongful convictions we have identified. . . .

“Yet these are singular cases. We have to take the information that we learn and leverage it to try to change the criminal justice system and reform it so that we can prevent wrongful convictions before they happen. That’s the key to this innocence commission.”

Florida State University student Chelsea Enright, a former intern at the Innocence Project, is creating a comprehensive data base on Florida’s exonerations.

Of Florida’s 11 DNA exonerations and 22 Death Row acquittals, she has completed analyzing 13.

“As of now, the leading factors appear to be in 50 percent of cases, there is eyewitness misidentification; 38 percent involve jailhouse snitches; police misconduct is in 29 percent of these cases. This includes a suggestive photo or other kind of lineup, perjury, and in one case the lead investigator was sleeping with the state’s lead witness,” Enright said.

“Prosecutorial misconduct was present in 21 percent of cases. This includes failure to disclose evidence, ex parte communication with the judge, forcing people to testify against their will, and suppression of evidence. Lastly, there are false or coerced confessions, circumstantial evidence, judicial error, junk science, a dog-sniffing expert, and witness perjury.”

“What do we do about it?” D’Alemberte asked. “What kinds of measures can we adopt to try to improve our criminal justice system so we can achieve the truth more often?”