Rules panel asks for DNA testing extension October 1, 2003 Gary Blankenship Senior Editor Regular News Rules panel asks for DNA testing extension Senior EditorAfter hearing an impassioned plea from two law professors, a Bar rules committee has voted to seek an emergency extension giving inmates more time to seek DNA testing that could exonerate them.The Criminal Procedure Rules Committee voted 23-10 on September 5 to seek the rule change. It filed an emergency petition with the Supreme Court on September 17 to extend the filing deadline for testing DNA evidence from October 1, 2003, to October 1, 2004. The committee met in Tampa during the Bar’s General Meeting.Acting days after the committee vote, the Bar’s Executive Committee endorsed the change, with Bar President Miles McGrane thanking rules committee Chair Judge Olin Shinholser “for the courage of what your committee did.”And state Sen. Alex Villalobos, R-Miami, filed SB 44, a shell bill, stating that, “The legislature intends to revise laws relating to DNA evidence following conviction.” Villalobos, who chairs both the Senate Judiciary and Criminal Justice committees, said he intends to have a joint meeting of the two panels later this month to address the issue.Two and a half years ago, the rules panel voted to seek an amendment allowing convicted inmates to seek DNA testing of evidence that could exonerate them. The committee recommended the two-year deadline.Shortly afterward, the legislature passed its own law, setting a two-year limit expiring October 1, 2003, for seeking the DNA testing. Noting the law and the committee’s majority vote, the court set the two-year limit.The problem, according to Nova Southeastern University law Professor Catherine Arcabascio and Florida State University law Professor Sandy D’Alemberte, is two years wasn’t enough time to review all of the cases. The two professors head the Innocence Project at their respective schools, which seeks DNA testing in criminal cases when it could lead to exoneration.D’Alemberte said the debate over the extension usually gets tied up in emotions involved in delaying death penalties, but the two schools work only with noncapital cases. There are hundreds which have not been reviewed, he added.“The sentence of everyone in the Florida Innocence Project is being carried out. The sentence is not being delayed,” D’Alemberte said. He added there’s no reason for attorneys representing the inmates to delay seeking the DNA test, either.The problem has come from inadequate resources to screen cases. Both law schools use volunteer law students to examine cases, but they have hundreds to tackle, and it can be an involved process.D’Alemberte said the volunteers have to track down files, determine whether DNA testing would make a difference, and see if the evidence still exists. Then they have to find a pro bono attorney to take the case.He also argued that the extension would improve the administration of justice. Without the longer date, inmates will flood the courts with last-minute petitions for testing, including mostly cases where testing won’t help — and the courts will have to sort through the cases, he said.So far, D’Alemberte estimated that screening has shown DNA testing won’t help or the evidence isn’t available in the overwhelming majority of the cases, which saves valuable court time. Nationally, of the cases that have been screened and gone through court, about 40 percent have resulted in exonerations, he said.Committee member Abe Laesser, who chaired a subcommittee which studies the exemption, questioned whether it would do any good because one year wasn’t enough time to deal with the backlog.D’Alemberte didn’t disagree.“I don’t want to represent to you it can be done in a year,” he said. “But not one of these cases and lawyers has any interest in delay.”He estimated it would take $5 million and three years to work through the backlog.Arcabascio said her Nova project has screened 800 cases, which has led to the filing of seven cases, and she expected another 15 would be filed by the October 1 deadline. There are still 300 cases that need to be screened there, she said. FSU has 297 cases awaiting screening.Committee member George Tragos said he had just accepted a screened case, and knowing someone had already reviewed the records will help meet the filing deadline.“The time limit was artificial when we set it,” he said. “It was set because we didn’t have any time records or statistics to show us whether that time was reasonable. They now have the history to show that time wasn’t reasonable.”A one-year extension is like a sunset, he said, noting the Innocence Project will have to justify any further continuance.Laesser said his subcommittee originally voted 3-2 in favor of a one-year extension, but then one member, who thought he could not vote, discovered he could, and that made it a 3-3 tie. Laesser said as chair he would vote to break the tie by opposing the extension.He said he was concerned about delays and the lack of guarantees the backlogs could be addressed in a timely fashion.“I don’t have a strong way of knowing how many of those hundreds of cases that are in the pipeline are going to be closed if we agree to an extension,” Laesser said. He added if the extension failed, his subcommittee would look at lowering the standards in existing rules that would allow waiving the time standards.Committee members also had questions whether the Supreme Court had the authority to change the time limit when it had been established in law by the legislature. D’Alemberte argued that under Allen v. Butterworth, (case no. SC00-113), decided by the court in 2000, that the justices could amend the rule.Following Chair Shinholser’s ruling that the subcommittee had voted 3-3 to not recommend the rule change, the panel voted 20-10 to reject that recommendation. It then voted 23-10 — three votes more than the two-thirds required — to seek the one-year extension. By a majority vote, the committee decided to seek an emergency amendment since waiting for the normal two-year cycle rule review would render the one-year extension moot.Bar Executive Committee members, when they met September 16, also expressed concern about whether the court could amend the rule without further legislative action. Bar General Counsel Paul Hill told the members that’s a borderline question depending on whether the change is seen as procedural — which is under the court’s purview — or substantive, which is under legislative oversight.The committee, which acts for the Board of Governors between its meetings, voted 11-0 to endorse the change and to support seeking an emergency rule amendment from the Supreme Court.McGrane reported that as a courtesy he had informed the Governor’s Office and the Attorney General’s Office about the proposed amendment. He said the Attorney General’s Office indicated they would not take a position on the extension.Villalobos said he was approached by attorney Barry Scheck during the last week of the session. Scheck, who runs the national Innocence Project, asked Villalobos to introduce a bill to extend the deadline — the first time the senator knew there was a problem.He said he told Scheck it was too late in the session to introduce legislation.Then a few weeks later, D’Alemberte and Arcabascio visited to further explain, and Villalobos said that was the first time he realized virtually everyone affected by the deadline was not on Death Row.The original two-year deadline was a time frame agreed to by prosecutors, the three Capital Collateral Regional Counsel offices. “When we were doing the hearings [on the bill], no one complained about the time limits,” Villalobos said.He agreed with Arcabascio and D’Alemberte that there is a legitimate concern, and consequently scheduled the rare joint meeting of the two Senate committee’s concerned with legal matters.“We will invite them, and state attorneys, and the attorney general and all interested parties and see if we can come up with language to solve this,” Villalobos said.He added the bill now contains no details because “I really want to wait and see what the testimony airs out. For all I know, there might be some other unforeseen circumtances. That’s why it’s important to get everyone together at one place.”The committees’ meeting is set for October 21.