A plea to learn from past injustices

01/04/2010
When an airplane falls from the sky or a train derails, National Transportation Safety Board investigators swoop in to the crash scene to figure out what went wrong, to try to make sure the tragedy never happens again. Yet when an innocent person is wrongly convicted and spends decades in prison, the American criminal justice system has no similar mechanism to determine what went wrong and prevent future injustices.

That’s the rationale for establishing innocence commissions advocated seven years ago by Barry Scheck and Peter Neufeld, founders of the national Innocence Project. Since then, innocence commissions have been established in Connecticut, Illinois, New York, North Carolina, Pennsylvania, Texas, and Wisconsin.

Now it’s time for Florida to create an innocence commission, too, say a group of Florida lawyers, including former Justices Harry Lee Anstead, Gerald Kogan, and Joe Hatchett; former ABA Presidents Martha Barnett and Sandy D’Alemberte; and former Florida Bar Presidents Hank Coxe and John DeVault.

In December, 68 lawyers filed a petition at the Florida Supreme Court for a rule establishing an “Actual Innocence Commission.”

“The purpose of the commission would be to investigate the circumstances of cases where actual innocence of a crime has been demonstrated and to develop recommendations for reforms to reduce wrongful convictions,” according to the petition filed by D’Alemberte, former Florida State University president and law school dean, now on the board of directors of the Innocence Project of Florida.

D’Alemberte envisions the commission would address “potential reforms in court procedures, improvements in attorney training, consideration of evidence rules, development of new ethical standards, or other steps to reduce the wrongful convictions,” as recommended by the 2006 ABA Florida Death Penalty Assessment Report.

As grounds for creating the commission, D’Alemberte points to at least 11 innocent Florida citizens convicted and wrongfully imprisoned: Orlando Boquete, Larry Bostic, Alan Crotzer, Cody Davis, Wilton Dedge, Luis Diaz, William Dillon, Chad Heins, Juan Melendez, Frank Lee Smith, and Jerry Frank Townsend.

After the petition was filed, a 12th man — 54-year-old James Bain — was freed December 16, after new DNA test results demonstrated Bain’s innocence of a 1974 Lake Wales kidnapping and rape of 9-year-old boy. According to the Innocence Project of Florida, Bain’s 35 years in prison is the longest time served by any of the 246 DNA exonorees nationwide.

“We really are just scratching the surface with the DNA cases and other people wrongfully convicted that don’t have the benefit of DNA to prove their innocence,” said Mike Minerva, the new CEO of the Innocence Project of Florida.

“Some factors that lead to wrongful convictions exist in many other cases. This is the purpose of the petition. The aim is to uncover all those factors that have contributed to wrongful convictions: particularly eye witness identification, jailhouse snitch testimony, and coerced confessions or false confessions.”

As Mark Schlakman, chair of the board of the Innocence Project of Florida, said: “Florida has the dubious distinction of exonerating more death row inmates than any other state. Beyond death penalty cases, Florida, by way of DNA evidence, has exonerated many individuals who are serving very lengthy sentences of crimes they didn’t commit. There hasn’t been any comprehensive review to determine why these miscarriages of justice take place.”

If the petitioners should prevail, they want the Supreme Court to use its rule-making powers to establish a commission similar to the North Carolina Actual Innocence Commission.

“Such a commission should not require major resources because it would draw on the services of many people who already hold office,” D’Alemberte argues, pointing to the precedent of the Florida Supreme Court commissions that studied racial and gender bias in the justice system that has continued through the Standing Committee on Fairness and Diversity.

D’Alemberte told the News : “I do not think the commission will be very expensive, and it could be funded with a modest appropriation from the Legislature, by the Bar, the Bar Foundation, or even, as in New York, by private lawyers. If the court expresses interest in doing this, we can all get to work on funding sources. I believe that the Legislature, through its staff and/or OPPAGA (Office of Program Policy and Government Analysis), may be willing to help out, but a signal from the court may be necessary to get this in motion.”

The petitioners hope the court will point out to the Legislature that significant savings could be achieved through reform.

“It’s really a question of how Florida cannot afford to do this,” Schlakman said. “The most compelling aspect is that innocent lives are being stolen, and when these cases are identified, Florida taxpayers bear the burden of compensating these individuals for the years they have lost. It clearly doesn’t make them whole, but it’s the very least of what the State of Florida can do, not to mention the costs taxpayers underwrite to maintain these innocent people in custody for years.”

As D’Alemberte argues to the court: “Common sense and a commitment to improving judicial administration support the petition.”

— Courtesy Florida Bar News