Legislature agrees to DNA testing extension

first_imgLegislature agrees to DNA testing extension June 1, 2004 Associate Editor Regular News Legislature agrees to DNA testing extension Jan Pudlow Associate Editor Legislation extending the deadline two years for criminal defendants convicted at trial to have their DNA tested for innocence claims unanimously passed both legislative chambers and was signed into law May 20.That means two law schools working on innocence claims in Florida — at Nova Southeastern University’s Innocence Project and Florida State University’s Florida Innocence Initiative — will have until October 1, 2005, to ferret out, investigate, and file petitions for DNA testing from about 600 cases.“It’s been a long road to get there,” said Sen. Alex Villalobos, R-Miami, sponsor of SB 44.A new feature added late in the House version of the bill by Rep. Ellyn Setnor Bogdanoff, R-Ft. Lauderdale, would have expanded the law to those defendants who plead guilty or no contest also to be eligible for post-conviction DNA testing, but failed to gather enough support.That’s not because Villalobos, chair of the Senate Judiciary Committee, doesn’t agree with her equal-protection argument, a reminder that not everyone who pleads guilty necessarily is guilty because of coerced confessions or deal-making to avoid exposure to more prison time.“You’re either guilty or innocent, and it shouldn’t make a difference what the circumstances of your conviction are,” Villalobos said.“But it was an issue we couldn’t get the votes to pass it. I didn’t want to put the bill in jeopardy.”Villalobos also said he believes “the best way to do it is without a deadline.” That was the argument Second Judicial Circuit Public Defender Nancy Daniels, president of the Florida Public Defender Association, and Jennifer Greenberg, director of FSU’s Florida Innocence Initiative, had made in testimony at committee meetings, echoing their stance in arguments made earlier at the Florida Supreme Court.But, again, Villalobos said, there were not enough votes in the legislature for the rationale that there should be no deadline on innocence.“We got what we could get. It’s not nirvana,” Villalobos said.Greenberg agrees the law could be improved.“Though this legislation is important, it is unsatisfying in many ways,” she said.While she said “we are thrilled to have additional time to work through and file meritorious cases,” Greenberg wants to work with legislators to create a “fairer DNA system.”To make the system better, she said, she agrees with Bogdanoff’s amendment that opens the DNA testing process up to those who enter pleas, not just those defendants convicted at trial. Secondly, Greenberg said, she hopes “some court with jurisdiction” will agree with her position that there should be no statute of limitations. Thirdly, what hasn’t been answered, she said, is: “How are we going to create and administer evidence preservation statewide?”Villalobos was prompted to file the bill after Barry Scheck, a defense attorney and co-founder of the national Innocence Project, delivered the message in person that the work could not be completed in Florida by the original October 1, 2003, deadline. But Scheck’s visit to the senator came seven weeks into the 2003 session, too late to file a bill last year. Villalobos said Scheck asked him if the DNA bill could be tacked onto other legislation.“If I amended this to the Article V bill, the Supreme Court would keel over,” Villalobos said. “I couldn’t put the Article V (court) funding in jeopardy.”But he promised to work to remedy the dilemma the following year.When the legislature passed the original DNA legislation effective 2001, everyone, including the Criminal Procedures Rules Committee, thought two years until October 1, 2003, would be sufficient time to investigate innocence claims. That has proven to be overly optimistic about the time-consuming task carried out by a three-person statewide staff and volunteer law students.In the meantime, the Florida Supreme Court stayed the October 1, 2003, deadline while it heard arguments November 7, 2003, (in case no. 03-1630) about whether the deadline should be extended. That case is still pending.During debate on the DNA bill in the legislature, there was some friction about the court’s rule-making authority in procedural matters and the legislature’s law-making authority in substantive matters.“Some people in the House thought the court overreached its authority in granting the stay,” Villalobos said. “But I am grateful the court did intervene and issue a stay. If evidence is destroyed, the law is not protected. Without the court’s intervention, I’m afraid some evidence would be lost. The court did the right thing, definitely.”Daniels said a bill in the House that proposed the legislature take over the court’s total rule-making authority became entwined in the debate on the DNA bill. She credits a meeting between Rep. Jeff Kottkamp, R-Cape Coral, chair of the House Judiciary Committee, and Sandy D’Alemberte (former president of the ABA, FSU, former dean of FSU’s College of Law), working on the Innocence Initiative, as helping the DNA bill “steadily make its way through.”“Rep. Kottcamp was very open, and when he understood our position, very supportive,” D’Alemberte said. “He and Sen. Villalobos are the heroes of this piece, although there are others who deserve the credit.“We made it clear that the Innocence Initiative at FSU and the Innocence Project at Nova had sought legislation and that we were comfortable going to the legislature for relief. Indeed, the original activity in this important area was legislative,” D’Alemberte continued.“Once everyone understood that there was an important policy objective — to get innocent persons out of prison and to help identify the guilty persons — we had smooth sailing in the legislature.”Daniels said the bill’s fate became favorable, as well, “because the prosecutors signed off on it early on and the court held off ruling on the rule but stayed the deadline. It seemed like the right thing to do.”Whether an additional two years will be enough time remains to be seen.“It’s admirable the legislature stepped up. I’m sure the court case will be resolved in harmony with that,” Daniels said. “And we’ll see if we can get the work done in two years.”Greenberg isn’t so sure it can be done.“We will work as hard as we possibly can work to try to make sure everybody entitled to our assistance receives our assistance. However, from day one, this office has said there should be no statute of limitations. Will it be enough time? Probably not.”last_img read more