Florida

Florida

NEW VOICES: Florida Justice Warns of Fallibility of Eyewitness Testimony

Justice Barbara Pariente of the Florida Supreme Court recently commented on the danger of mistake in eyewitness testimony and the importance of warning juries about the possibility of error. Her comments came in a death penalty case where she said that widely accepted scientific research, "'convincingly demonstrates the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification.'" (citation omitted).  She also noted that "eyewitness misidentification has played a role in more than seventy-five percent of convictions that were subsequently overturned through DNA testing" in Florida. She recommended that courts allow experts to testify about the fallibility of such testimony.

After Almost 30 Years, DNA Shows State's Case "Has Collapsed"

On June 26, the Florida Supreme Court overturned the capital murder conviction of Paul Hildwin and ordered a new trial because new DNA evidence completely contradicted the state's evidence presented at trial. Hildwin was convicted of a 1985 murder and sexual assault. At trial, an FBI forensics expert wrongly claimed that bodily fluids found at the crime scene matched Hildwin and could not have come from the victim's boyfriend. However, more recent DNA testing excluded Hildwin and found that the fluids matched the boyfriend, who is incarcerated for the sexual assaults of two minors. In the decision overturning Hildwin's conviction, the Court said, "We cannot turn a blind eye to the fact that a significant pillar of the state’s case, as presented to the jury, has collapsed and that this same evidence actually supports the defense." Barry Scheck, co-director of the Innocence Project, which was involved in Hildwin's appeal, said, “As Mr. Hildwin’s thirty year quest to free his name so dramatically illustrates, there is a real danger that the recently enacted ‘timely justice act’ could result in the execution of innocent people.” 

Florida Supreme Court Directs Acquittal of Death Row Inmate

On June 12, the Supreme Court of Florida (6-1) overturned the convictions and death sentence of Carl Dausch because the state presented insufficient evidence of his guilt at trial. The Court directed that he be acquitted of all offenses, stating, "[T]he record lacks sufficient evidence of the perpetrator's identity." Dausch was convicted primarily on fingerprints and DNA from a cigarette butt that were found in the victim's car. DNA evidence taken from the victim was less definitive. Dausch said he had hitchhiked while returning home from a family vacation, and the person who picked him up was likely the actual killer. Because the evidence against Dausch was circumstantial, the court applied a "special standard of review," which required "that the circumstances lead ‘to a reasonable and moral certainty that the accused and no one else committed the offense charged. It is not sufficient that the facts create a strong probability of, and be consistent with, guilt. They must be inconsistent with innocence." The Court said the evidence only linked Dausch to the victim's car, not to the murder itself.

Autopsy Photos from Botched Florida Execution Released

The New Republic has just released autopsy photos taken after the Florida execution of Angel Diaz in 2006. The execution was so badly botched that it prompted then-Governor Jeb Bush to temporarily suspend executions so the state's lethal injection procedure could be reviewed. The needles that should have been inserted into Diaz's veins were instead pushed through into the surrounding tissue, causing extensive chemical burns. Dr. Jonathan Groner, a professor of clinical surgery at Ohio State University College of Medicine, viewed the photos and said, “I’ve never seen anything like this from IV infiltration...That is the kind of injury we see when a kid has fallen in a campfire or set his arm on fire. My guess is someone who got this when alive would need skin grafts to heal.” When the first dose of the three drugs did not kill Diaz, the cycle was administered a second time. Since sodium thiopental, the first drug used in Diaz's execution, does not produce anesthesia when injected into tissue, Diaz was likely conscious as the other drugs slowly caused paralysis and prevented him from breathing. Witnesses to the execution said Diaz continued to move long after he should have been unconscious. The autopsy revealed large chemical burns on Diaz's arms and the medical examiner noted "extensive skin slippage," which occurs when the top layer of skin separates, revealing the white and pink subcutaneous layers beneath. The autopsy photos were recently found in the case files of another Florida inmate, who used them to challenge the state's execution procedure.

Supreme Court Strikes Down Florida's Strict IQ Cutoff for Death Penalty

On May 27, the U.S. Supreme Court held in Hall v. Florida that Florida's strict IQ cutoff for determining intellectual disability in capital cases is unconstitutional. The Court concluded, "Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world." In 2002, the Court banned the execution of people with "mental retardation," but allowed states leeway in selecting a process for determining who would qualify for that exemption. According to Florida's Supreme Court, defendants with an IQ even one point above 70 cannot be considered intellectually disabled, even though most states allow for a margin of error in such tests. The Supreme Court's ruling stated that Florida's strict rule "disregards established medical practice" and noted that the "vast majority of states" rejected such a narrow interpretation of IQ scores. The Court held that, "When a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits." Hall will receive a new hearing on his intellectual disability claim.

Florida Passes Bill to Compensate Exonerated Death Row Inmate

As the last act of its legislative session, the Florida Senate passed a bill allowing the state to compensate James Richardson, who had been wrongfully sentenced to death and incarcerated for 21 years. In 1967, Richardson, who is black, was convicted and sentenced to death by an all-white jury for the murder of his seven children. Many years later, a former babysitter confessed to the crime, prompting an investigation that revealed that witnesses had been beaten to convince them to falsely testify against Richardson. In 1989, Richardson's conviction was thrown out and he was released. Richardson, now a frail old man, had not been able to receive compensation for this injustice because the evidence from his case had been lost or destroyed. Now he will be able to apply for compensation based on the special prosecutor's investigation and the order to release him from prison. Sen. Geraldine Thompson, a sponsor of the bill, said "This will allow him to have an opportunity to revisit some dreams that were deferred early in his very young life." Robert Barrar, an attorney who has represented Richardson, said, “The Legislature did the right thing. To right an injustice for all those years that were taken away from him.”

NEW RESOURCES: Latest "Death Row, USA" Now Available

The latest edition of the NAACP Legal Defense Fund's Death Row, USA shows the total death row population continuing to decline in size. The U.S. death-row population decreased from 3,108 on April 1, 2013, to 3,095 on July 1, 2013. The new total represented a 12% decrease from 10 years earlier, when the death row population was 3,517. The states with the largest death rows were California (733), Florida (412), Texas (292), Pennsylvania (197), and Alabama (197). In the past 10 years, the size of Texas's death row has shrunk 36%; Pennsylvania's death row has declined 18%; on the other hand, California's death row has increased 17% in that time. The report also contains racial breakdowns on death row. The states with the highest percentage of minorities on death row were Delaware (78%) and Texas (71%), among those states with at least 10 inmates. The total death row population was 43% white, 42% black, 13% Latino, and 2% other races.

Supreme Court to Examine Florida's Narrow Standard for Mental Retardation

On March 3, the U.S. Supreme Court will hear oral arguments in Hall v. Florida, a case addressing the strict standard for intellectual disability that Florida uses to determine if inmates are exempt from execution. Under the Court's 2002 decision in Atkins v. Virginia, individuals with intellectual disabilities (mental retardation) are constitutionally barred from receiving the death penalty. The decision "le[ft] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction," resulting in various standards for determining intellectual disabilities across the states. Unlike almost all other states, Florida rigidly requires an IQ of 70 or below to demonstrate mental retardation, with no allowance for the test's margin of error. Freddie Hall, the death-row petitioner in this case, was first diagnosed with intellecutal disabilities in elementary school. Prior to the Atkins, a Florida court determined that “Freddie Lee Hall has been mentally retarded his entire life.” Despite these findings, Hall is still facing execution. Cornell Law Professor John Blume said, while the issue is limited, the case is important, "to make clear that states cannot narrow a categorical ban created by the Supreme Court intended to protect a vulnerable group from wrongful execution."

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