Petitioning the court for DNA testing is a time-consuming process. The two-year limit set forpreviously convicted prisoners should be removed.
Published September 3, 2003
There is no statute of limitations on innocence, but the Florida Legislature gave it one.
In 2001, in light of revelations that dozens of imprisoned felons across the country were in fact innocent of their crimes, the Legislature passed a law providing some Florida prisoners access to DNA testing. The legislation was widely regarded as a vital step toward ensuring that innocent people were not populating Florida's prisons.
Florida had been home to some notorious cases where prosecutors and police had pushed forward with questionable prosecutions. Frank Lee Smith, for example, died of cancer after spending 14 years on death row for the murder and rape of 8-year-old Shandra Whitehead. A DNA test posthumously exonerated him. Inexplicably, for years prosecutors had fought to prevent that illuminating test.
Those stories persuaded lawmakers to provide inmates access to DNA testing. But in its efforts to respond to the concern that an open-ended DNA testing statute would mean cases would never be fully closed, the Legislature put a two-year statute of limitations on tests done after sentencing. According to the law, previously convicted prisoners, for whom DNA tests could provide evidence of guilt or innocence, would have two years to petition the court. All requests would have to be filed by Oct. 1, 2003.
As it turns out, this is not enough time.
A petition for DNA testing might seem like a simple process, but the statute places heavy burdens on the petitioner. For example, inmates must tell the court the whereabouts of all the evidence and its character, an inquiry that might take significant investigation. Jennifer Greenberg, director of the Florida Innocence Initiative, says petitioning the court for DNA testing is an expensive and time-consuming process. Hundreds of requests by inmates have been received by her organization, which is currently readying 82 such petitions. She says there are many more potentially innocent people in prison that her group just doesn't have the time and resources to help.
A two-year window may have seemed sufficient when the legislation was drafted but experience tells us that more time is needed. On Friday, the Florida Bar Criminal Rules Committee will meet to discuss the issue. It may recommend to the Florida Supreme Court that the court use its rulemaking authority to give all convicted prisoners who have a basis for requesting it access to DNA testing, regardless of how much time has lapsed.
After all, the state Constitution guarantees procedural due process, and what could be more fundamental than giving people the opportunity to prove their innocence? If the Bar and the court don't act, the Legislature should. At its next convening, the time limit should be removed. The law should also be amended to require retention of biological evidence for longer periods.
There would be little need for legislation if some prosecutors did not fight so hard against DNA tests for old convictions. Their argument - that the system has an interest in finality - pales in comparison to the state's interest in restoring liberty to people who have been wrongly convicted.
Pinellas-Pasco State Attorney Bernie McCabe should be congratulated for his long-running policy that DNA testing should be available in every case where it could speak to guilt or innocence. But not every member of Florida's prosecutor corps is ready to put justice ahead of finality.
