11th Circuit State Attorney's Office reviews its own DNA cases.
That question nagged at Michael Gilfarb, a 38-year-old homicide prosecutor in Miami, sparking an idea that has turned into an unprecedented project in Florida.
He persuaded his boss, 11th Judicial Circuit State Attorney Katherine Fernandez Rundle, to launch their own version called the Justice Project that will have prosecutors reviewing felony cases before 1996 for DNA evidence of defendants convicted at trial.
"It just bugged me that another organization was doing what we should be doing," Gilfarb said. "More than anybody, it's a prosecutor's job to make sure justice is done and that the right person is in custody."
Taking that prosecutorial duty this far, Gilfarb said, "is a very rare mantle that we have assigned ourselves. I believe we are the only jurisdiction that has not waited for a catastrophe. The idea of this project is to finally say, 'Hey, defense, we have a common goal.' They don't want an innocent guy in prison, and neither do we."
Top prosecutors in only San Diego, St. Louis, and Houston have launched their own review of old cases, Gilfarb said, and St. Louis did so because they were sued by Barry Scheck of the Innocence Project.
Since 1992, the Innocence Project founded by Scheck and Peter Neufeld has helped exonerate 140 convicted felons nationwide using DNA testing, 25 of those in Florida.
Gilfarb said he is carefully building "a coalition between us and the Innocence Project to avoid inflammatory speak between us. We are adversaries. This is fragile ground. I think the people at the Innocence Project trust me. I trust them. But of course, we always keep a vigilant eye."
The prosecutors' efforts to review old cases dues not prohibit the Innocence Project from doing its own thing, independently, though they communicate to make sure they are not redoubling efforts.
"I think this is a wonderful effort," said Jennifer Greenberg, director of Florida State University College of Law's Florida Innocence Initiative.
"The idea that we all understand mistakes have been made in the past and for prosecutors to delve into the past and try to find those errors, we applaud that effort. We want to assist however we can."
But Greenberg offers a caveat that the 11th Circuit's Justice Project still involves prosecutors' judgment calls and they are still adversaries even as they cooperate on DNA testing.
"Working in collaboration with the defense in which judgment calls are made would probably be a wise procedure," she said. "As I have tried to express to them, we do different jobs and come from different places, and we understand human behavior in different ways. Psychologically, I think it's difficult for prosecutors to make those kinds of judgment calls. That being said, what they are doing in that state attorney's office is what we hope every state attorney's office will do. I hope it bears fruit, and I hope other state attorneys will see the importance of what they are doing."
Rundle was willing to put her assistant's idea into action.
"When a young, smart dedicated lawyer comes to you and says this has been on my mind, and says, 'Can we see what we can do?' that is exactly the talent every state attorney is so happy to have in the office," Rundle said.
They not only review old cases for DNA evidence using new scientific tools, but they are working at increasing the data base for DNA samples that will help solve cases.
Her consciousness was raised about the possibility of innocent people wrongly convicted "watching what was going on in Chicago and the moratorium (on the death penalty) and the interest that was generating," she added.
Armed with the backing of judges, corrections officers, and the police, Rundle launched the unique program in November.
The prosecutors know DNA could exonerate someone wrongly convicted.
"It is a big gamble for our office," Gilfarb said. "But if somebody innocent was found in prison, it's not an indictment of the system, but proof the system works in bettering itself. A lot of cases we are reviewing, DNA testing didn't exist."
On the other hand, Gilfarb said, "It might show we did a great job and didn't prosecute innocent people. (Rundle) is willing to take that risk."
The whole project involves four committees--the Justice Project, the DNA Compliance Task Force, the Science Law, and the Cold Case, Cold Hit--and "definitely means more work" for her prosecutors, Rundle said.
"We are the fourth largest state attorney's office in the United States. And to see their faces, their enthusiasm to do this, when they have overwhelming caseloads and are already pathetically paid. They didn't even blink, because they know how important this was. They threw their entire enthusiasm into this. That, to me, was most gratifying," Rundle said.
Gilfarb admits he did "hear a lot of groans and moans" from his colleagues at first.
"It was more work with no money added on. We checked people for sharp objects at the door. But no one doubted the nobility of what we are doing, because everyone understands this is an important part of our job," he said.
The reason the state attorneys' Justice Project targets cases before 1996, Gilfarb explained, is that before that time, forensic scientists needed blood, semen, or saliva samples the size of a quarter in order to conduct the DNA testing. Technology advances enable DNA testing to now be done on samples the size of a pinhead.
The project is reviewing cases of defendants still in prison after being convicted at trial, limited to those cases in which the Miami-Dade clerk's office has maintained physical evidence for testing.
So far, Gilfarb has a list of 360 cases with evidence still available from the clerk that can be tested for DNA and the defendant is still in custody, and he expects that number to increase.
The prosecutors will check with the Innocence Project at Nova Southeastern University's law school and FSU's Florida Innocence Initiative to determine if the case is already being worked, so efforts aren't duplicated.
Letters will be sent to inmates, asking if they want to have evidence in their case tested for DNA, and if so they must submit to a check swab for DNA that will be entered into the statewide database.
That's a second mission of Rundle's office: to increase the DNA data base. Since 1990, Florida law has allowed the state to collect DNA samples from certain felons, even those who have served their time. But because of an overload of cases and bureaucratic confusion, many felons' DNA fell through the cracks.
In December, Gilfarb met with judges and court administrators to correct that problem, working out a system that began in January to swab defendants immediately after sentencing in court. Gilfarb also filed motions for court orders to obtain DNA swabs from 352 felons convicted since 1990 who were never swabbed while in custody, and he is working with probation officers to establish a system for swabbing nearly 1,600 felons who haven't given samples.
Since the DNA Compliance Task Force geared up in January, a recent quarterly report from the Florida Department of Law Enforcement reveals progress: The 11th Circuit ranks fourth out of 20 circuits in compliance, rather than 17th before it began.
Bolstering the statewide database at FDLE, Gilfarb believes, will only help solve more crimes.
"In so many ways, the prosecution is the gatekeeper," Rundle said. "Justice means those guilty are held accountable for their crimes. And, certainly, we don't want to convict the innocent. What a prosecutor really wants is the guilty person, and out mission is to find that person."