Innocence Commission to Begin; Prosecutors Grumble

Seth — July 1, 2010 @ 12:32 PM — Comments (4)

We have been busy here and haven’t been able to blog, but a lot has happened regarding the new actual innocence commission taking shape here in Florida.  The Commission will be headed up by new Chief Justice Charles T. Canady:

Included in the 2011 fiscal year budget is $200,000 to start an Innocence Commission to examine wrongful convictions in the state of Florida.

“I want to accomplish just as much as possible (on wrongful convictions) … because it is an important issue that needs to be addressed as quickly as possible,” Canady said.

It appears that there will be an executive order shortly to create the Commission and lay out its structure.  The Court is already hiring an Executive Director and an assistant, and the Florida Bar Foundation is providing roughly $100,000 of additional funding for the Commission’s work.

The idea of giving a comprehensive look to why wrongful convictions happen and developing consensus reforms for preventing wrongful convictions in the future is something that transcends partisan politics.  Indeed, there seems to be near universal support from the public, media, legislature, court, defense community, and innocence community for this effort.  Yet given all this, the prosecutorial community just doesn’t think it is worth the time or energy:

Earlier this year, the Florida Legislature funded the commission for one year, providing $200,000. . . . A smarter investment by lawmakers, Wolfinger said, would be to plow more money into DNA labs run by the Florida Department of Law Enforcement.  “The advent of DNA has been fantastic to prove guilt or prove innocence,” he said.

William Cervone is less supportive of the commission. He is state attorney for the Eighth Judicial Circuit, which includes Alachua County, and serves as president of the Florida Prosecuting Attorneys Association.  No prosecutor wants to lock up innocent people, he said, but he added, “I don’t know what another commission at public expense will do.”

People who have been wrongly convicted, he said, already have a remedy – appeals courts.

Cervone continued in the Ocala Star Banner:

“We do not live in a perfect world. The entire court system is designed to find truth through judges, juries and multiple levels of appeals,” he said. “Beyond question, the system generally works. There will be, by human nature, errors and we do our very best to correct them, to ferret them out.”

Those views aside, Cervone said the application of state funds for an Innocence Commission is questionable given recent lean budget years. By his estimate, the same dollar amount could be used to fund four additional entry-level assistant state prosecutors or public defenders in resources-strapped offices around the state.

It is so obvious to see the logical fallacy in Wolfinger’s and Cervone’s remarks, but it is worth rebutting here.  First there is the money argument, which I guess is supposed to appeal to people right now because of the down economy.  It must be said that this Commission is budget neutral.  The legislature took $200,000 from one place in the judiciary budget and earmarked it for the Commission.  I fail to see how taking that money from the judiciary and giving it to FDLE will help prevent wrongful convictions.  Such a move wouldn’t perpetuate a change in how law enforcement agencies prepare and administer lineups to make them less suggestive.  It wouldn’t make every law enforcement organizations video record the entirety of custodial interrogations to identify and weed out false confessions.  It wouldn’t address the continuing problem of nefarious jailhouse informants, and it wouldn’t even be enough money to have FDLE really look at whether their different forensic methods and conclusions are actually as reliable as advertised.

Similarly, Cervone actually argues that we could hire a few 26-year-old prosecutors or defense attorneys and somehow these four green lawyers will just solve all the problems in the criminal justice system in the entire State of Florida.  In the immortal words of SNL’s Weekend Update: Really ?!?!?!

Cervone also makes the claim that wrongful convictions are a rare, fluke occurrence and that simply by having due process, i.e. jury trials, appeals, postconviction proceedings, the criminal justice system provides enough protection to the innocent to alleviate the need for this Commission.

Tell that to Wilton Dedge, who was first denied relief on exclusionary DNA test results on purely procedural grounds, with the attorney general arguing in the appellate court that Dedge’s “innocence is irrelevant.” He spent 4 additional years in prison, and 22 years of total wrongful incarceration before he was exonerated.  Ask William Dillon whether he got a fair shake.  The state hid evidence and used a fraudulent dog handler to connect Dillon to the crime.  When the dog handler was later discredited, Dillon took advantage of those appeals Cervone speaks of and the court said too bad too sad.  Dillon was exonerated by DNA testing after 27 years in prison.  And let’s not forget about Jamie Bain, who was thwarted by the courts for 8 years of attempts to obtain DNA testing. Four petitions and many appeals later, and after he got competent counsel (IPF and the Polk Public Defender) to show the court that they had been rubber stamping the denials of that DNA testing the whole time, Jamie was exonerated through DNA testing after serving 35 years in prison, the longest known wrongful incarceration served by a DNA exoneree.  None of the 255 DNA exonerees nationwide and the 12 DNA exonerees in Florida were freed because of this criminal justice system.  Instead they were proven innocent  in spite of it, and in most cases over strong opposition from prosecutors like Cervone.

This is why this Commission is needed.  Because Florida’s criminal justice system is too big and too unwieldy to police and correct itself.   The creation of the Commission is a recognition that wrongful convictions of innocent people are a tragic reality that exists in Florida.  We know what the causes are and how to address them to prevent wrongful convictions in the future.  People like Cervone and Wolfinger can cover their ears and yell “la-la-la” till  they run out of breath but it won’t change the fact that there are systematic defects in the criminal justice system that cause wrongful convictions even when we do everything right, with the best intentions.

I just hope that the prosecutors understand that this is not a nuisance but an opportunity to work together with diverse criminal justice actors to do the right thing.  We need them to make meaningful and successful the potential reforms that emanate from this Commission.

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Comments and Pings on “Innocence Commission to Begin; Prosecutors Grumble”

  1. Hello,
    My name is Esther Kokal. My husband, Greg Kokal, has been on death row at Union Correctional for about 26yrs awaiting the courts decision to free him or execute him. The crime took place in 1983 I believe. The shooter plea bargained and did less then 14yrs. Our attorney ( who has just argued before the 11th circuit) is informing us that it doesn’t look good, and that this case has been in ruins from the beginning. The outcome of the first trial was 12-0 with no mitigators.

    Mr.O’kelly, the co-defendent has just been arrested for spitting on a technician regarding an ankle bracelet due to a dui charge in the state of Denver, CO. Our plight at this time is that Mr.O”kelly is HIV+. Time and unforseen occurences puts my husband in a very dark future if Mr.O’kelly will not tell the truth soon.
    I have no idea how to go about pleading for my husbands life except in desperation. I have written to President Obama in hopes that someone on his staff will read my letter.

    I realize that this project is for the innocent – my husband was at the scene of the crime. Gregory Kokal has paid dearly for being with the man who shot an innocent victim that night.

    I was referred to you by UF Law Professor Kenneth Nunn.

    Any counsel would be greatly appreciated.

    Esther Kokal

     Esther Kokal — July 1, 2010 @ 2:20 pm
  2. Write the governor of your state. Sometimes as they leave if not re elected they pardon criminals. Not sure if Capitol cases need a press. Pardon or state gov pardon but they can direct you,

    Good luck

  3. Pingback from Florida’s Innocence Commission in Pursuit of a Just Cause | Innocence Project of Florida.

    […] our blog entry from July 1, 2010 (“Innocence Commission to Begin; Prosecutors Grumble”), the points raised by the naysayers of Florida’s newly founded Innocence Commission are […]

     July 8, 2010 @ 11:26 pm

  4. My name is Gemma Uyleman,

    I came across Your Website which noted it had provided assistance to Death Row Inmates in Florida.
    I’m involved with an Florida Inmate who is seeking for assistance with an actual innocence claim which has been exhausted in the State Courts
    Would You please send me some needed advice ?
    I was referred to You by Pro Bono Lawyer Drinkler Biddle&Reath LLP ( mrs Jill Bronson)
    Thank You for Your consideration
    Kind Regards
    G. Uyleman vd Weijden

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