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A British model for Florida to follow

By MARTIN DYCKMAN, Times Associate Editor

© St. Petersburg Times, published February 23, 2003

TALLAHASSEE -- A remarkable thing happened in Great Britain a few years ago. The government conceded that miscarriages of justice do occur, and set up an agency to rectify them. The mother country hasn't run out of things to teach us.

Their Court of Appeal last month freed a Manchester lawyer, Sally Clark, who had served more than two years in prison on a life sentence for the deaths of infant sons 13 months apart. The court ruled her convictions "unsafe" because a medical examiner had withheld evidence of a virulent staph infection that had likely killed the second child.

"With commendable good sense," said the presiding justice, "the prosecution have themselves decided that no retrial can take place."

Clark, 38, had steadfastly declared her innocence despite losing her first appeal in what the British press, in its kinder moments, referred to as the "73-million to one" double murder case. After the sudden death of their second baby, Clark, and her husband, Stephen, had asked for an autopsy. A government pathologist, Alan Williams, claimed to have found evidence of retinal and brain damage typical of shaken-baby syndrome. Prosecutors concluded that Clark must have killed the first baby too.

By trial, the baby-shaking theory had collapsed, to be replaced by suffocation. Both cases were weak, but Clark was convicted, 10-2, on the testimony of a professor, Sir Roy Meadow, that there was only "one in 73-million chance" both deaths could be natural.

This set off a clamor from other parents who had lost more than one child to sudden infant death syndrome and eventually brought a sharp rebuke from the Royal Statistical Society, which accused Meadow of a "serious statistical error."

By then, the Solicitors' Disciplinary Tribunal had signaled its skepticism by refusing to revoke her license to practice law. Still, Clark remained in prison until after her husband (also a solicitor) and her defense team had pried loose hospital documents showing that a staph infection had spread into the baby's spinal fluid.

At that point they applied to the Criminal Cases Review Commission, the agency that had been established in 1997 to professionally and openly investigate claims of miscarriages of justice. Previously, the home secretary, a Cabinet minister, was the court of last resort. Nearly all pleas were turned away without explanation. The CCRC, on the other hand, is required to be open. The law requires it to refer a case to a court of appeal when it believes there is a "real possibility" that a conviction or sentence would be overturned.

Clark applied in November 2001 to the CCRC, which referred her case to the Court of Appeal in July 2002. The court got to it in late January and released her within hours of concluding the arguments.

From the Times of London:

". . . Mrs. Clark's face momentarily crumpled and she dissolved into tears behind the iron bars of the dock, where she sat with a security guard. She then looked across the court, smiled and mouthed the words, 'I love you' to her husband, who had clasped his head in his hands before standing and raising both arms in triumph. They were the same words he had mouthed to her as she left the dock when convicted."

The CCRC was created in response to several scandalous miscarriages. Through Dec. 31, it had referred 184 cases. Of the 122 referrals it had heard, the Court of Appeal overturned 79 convictions or sentences, nearly two-thirds. Though fairly criticized for a backlog -- among the reasons, it had inherited cases half a century old -- the CCRC is now catching up.

Jim Nichol, a London lawyer who has made a specialty in miscarriage of justice appeals, says he was "extremely skeptical" of the CCRC at first, but wrote to the chairman two years later to say, "I don't agree exactly with what you do, but I was wrong."

"It works," he explained in an interview. "It is is open, it is dedicated to finding miscarriages of justice . . . Whatever my criticism, it's a good institution."

The agency has been accepting appeals from the families of people who were hanged before Great Britain abolished capital punishment in 1964. At least two have been exonerated posthumously, Nichol said.

That would have been Clark's fate in the old days, he noted. People were hanged within months of conviction.

There is an ironic coincidence. The initials CCRC happen also to be those of the Florida state legal agencies that represent death row prisoners -- the agencies Gov. Jeb Bush wants to abolish in favor of hiring volunteer lawyers, for severely restricted fees, who would not have to match the CCRC expertise, and would not be be expected to match its success.

Florida needs not just to keep its CCRCs, but to follow the British model and establish a professional agency to investigate and review all alleged miscarriages, free of the mind-set of prosecution or defense. The courts should welcome neutral advice.

This is a wish, not an expectation. The Legislature is overwhelmingly proprosecution, and money has never been so tight. However, it would behoove us to listen to the mother country's good lesson.

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