Posted on Fri, Mar. 07, 2003
Death of DNA law seen as fiascoExperts: It saves innocent inmates
BY WANDA J. DeMARZO
wdemarzo@herald.com
A panel of experts sees a legal train wreck coming this fall when a two-year statute of limitations runs out on raising DNA challenges to Death Row convictions.
Florida lawmakers created the two-year window of opportunity in 2001 after the exoneration of Frank Lee Smith, a Broward man who died of cancer while appealing his death sentence.
But the DNA challenges by inmates have been bogged down by disagreements over how the tests should be conducted.
There should be no time limit on justice, critics say.
'If we later find out that we executed an innocent person, we can't dig up their grave and say `Whoops! Sorry, we made a mistake,' '' said former Florida Supreme Court Justice Gerald Kogan. Kogan was one of six legal experts participating in a discussion on wrongful convictions Thursday at the University of Miami Law School.
Others on the panel included former U.S. Attorney General Janet Reno, Miami-Dade County Public Defender Bennett Brummer, attorney Bill Laswell with the Broward Capital Crimes group, Death Row attorney Martin McClain and Catherine Arcabascio, a professor at Nova Southeastern University's Innocence Project.
Inmates say they want independent examination of the DNA. Agencies, like the Broward Sheriff's Office, say they should do the DNA tests.
The panel addressed several issues, including the death penalty and the governor's plan to cut funding for an agency that defends Death Row inmates.
But one of the most pressing issues on the table was the rapidly approaching October deadline for DNA testing.
The panelists wants state legislators to extend the deadline. Such testing has exonerated 123 people nationwide in the past decade, according to the nationally known Cardozo Innocence Project, based at Yeshiva University's Benjamin Cardozo School of Law.
''If 123 people have been exonerated in the last 10 years, think of how many more innocent people may be incarcerated,'' Reno said.
Of those 123 exonerations, 25 are from Florida.
One of those was Frank Lee Smith, who died 11 months before DNA cleared him of the 1985 rape and murder of 8-year-old Shandra Whitehead, McClain said.
Under the two-year time limit, Smith and Jerry Frank Townsend -- convicted of murderer but later freed by DNA testing -- wouldn't have had a chance to get the genetic testing that proved they were not guilty.
Townsend walked out of prison after 22 years.
Brummer said there is always a chance of error where scrutiny is lacking.
In the last two years, the Florida Innocence Project at Nova Southeastern Law School has received more than 600 cases of prisoners claiming innocence.
Project members have identified 150 of those as DNA cases. But, they say, there's not enough time to review cases before the fall deadline.
Nova has handed an additional 400 cases to the Innocence Project in New York.
''There shouldn't be a time limit on justice,'' said Barry Scheck, co-founder of the Cardozo Innocence Project.
Reno has volunteered her services to help with the backlog of Florida cases. Officials plan to hire more staff.
The Cardozo and Florida Innocence Projects are launching a campaign in Tallahassee to lobby legislators to extend the DNA deadline.
'Do you know how hard it is for me to tell my clients `It's over. You're going to die in a couple of hours,' '' said McClain, an attorney for the Capitol Collateral Regional Counsel, a state agency that has overturned sentences for Death Row inmates. ``Without that extension many of them will be executed.''
The future of the state agency is uncertain. Gov. Jeb Bush has proposed eliminating the agency, suggesting he can save $3.8 million by replacing it with a ''registry'' of private attorneys.
Laswell called the governor's plan is ``sheer stupidity.''
''All the credentials those lawyers need are a second-grade education,'' Laswell said. ``They're not going to be Death Row qualified and it will end up costing a lot more.''
