In February 2002, I
interviewed Barry Scheck, co-founder of the Innocence Project, a New
York-based legal center that works on post-conviction cases involving
DNA, for a story on Florida's flawed capital-justice system and the
group's efforts to free the wrongly convicted. The Innocence Project
helped win the release last week of Luis Díaz, the wrongly convicted
''Bird Road rapist,'' based on DNA tests.
Florida leads the nation in the number of Death Row inmates
exonerated because of DNA. I learned through research that access to
post-conviction DNA testing is essential to ensure the right person
does the time for the crime. Our justice system is wrought with flaws.
Science speaks truths. Prosecutors, detectives, witnesses and victims
sometimes do not.
Shortly after our interview, Scheck and the law school students who
work on the project celebrated a revision to existing New York
legislation that guaranteed an inmate access to DNA testing and
eliminated the earlier requirement that the conviction must have come
before 1996. And in October 2004, Congress passed the Justice For All
Act, granting any federal inmate the right to petition a federal court
for DNA testing to support a claim of innocence.
Florida, however, has no comparable law for those convicted in state
court. Instead, in 2001, after the DNA exoneration of a Death Row
inmate who had died before his execution, the Florida Legislature
passed a law giving inmates the right to apply for post-conviction DNA
testing if they could show that the test results were likely to
exonerate them. The right was available only to those who had pleaded
not guilty. But sometimes the accused will accept a plea deal for
reasons that have nothing to do with actual guilt.
In addition, the law applied only to those who could make their case
within two years. The right to DNA testing in Florida expired Oct. 1,
2003. It was later extended to October of this year after lawyers with
the Innocence Project filed suit in the Florida Supreme Court. On
Friday, Gov. Jeb Bush ordered police agencies not to destroy DNA
evidence.
Luis Díaz was convicted based almost exclusively on eyewitness
testimony. One woman after another pointed at the 134-pound fry cook,
swearing he was their assailant. Not a single piece of physical
evidence linked Díaz to the rapes. In fact, the initial description
provided to police by a victim in 1977 described an attacker who
weighed approximately 200 pounds and stood at least 6 feet tall. Díaz
is 5 foot 3.
What most lay people do not realize -- certainly the Díaz jury did
not -- is the inherent unreliability of victim and witness
identification. According to Innocence Project research, mistaken
identification is the No. 1 factor leading to wrongful convictions.
Science provides the only irrefutable and reliable evidence. Science
cannot be manipulated by zealous prosecutors or clouded by memory
lapses.
Newspaper and television reports showed Díaz leaving the Richard E.
Gerstein Justice Building last Wednesday, flanked by his family and
Scheck, flashing peace signs and the kind of smile you would expect
from a 67-year-old man drawing his first breath of freedom in more than
26 years.
I can't even begin to imagine how much money it would take to
compensate an innocent man for spending decades in prison. Nineteen
states do attempt to right the wrong with cash, including Alabama,
California and Tennessee. In the Justice For All Act, Congress
increased the amount of compensation for those wrongfully convicted of
federal crimes to up to $100,000 a year for those exonerated from Death
Row and $50,000 a year for others.
But like its ungenerous DNA-testing policy, Florida does not offer a
cent. There is no compensation law on the books, so there is no
guarantee that money will be forthcoming when the innocent are forced
to face a new life out of prison where freedom is often best
supplemented with a paycheck.
It is time for Florida to guarantee DNA testing for any inmate who
requests the test -- when the material is available, without conditions
-- and to compensate the wrongfully convicted by enacting appropriate
legislation. Fairer laws would have guaranteed an aging, innocent Luis
Díaz a few more breaths of precious freedom and compensate him for
those many lost years.
Jennifer Santiago is a reporter for CBS 4 News.
