Supreme Court hears DNA testing arguments.

Trying to reconcile a proposed criminal procedural rule on DNA testing for inmates with a recent state law, the Supreme Court heard oral arguments August 28.

A majority of the debate centered around whether the law -- which allows only those tried and found guilty to seek exoneration or a sentence reduction through DNA evidence -- should also be applied to inmates who plead guilty or nolo contendere.

Those representing public defender groups also objected to a provision in both the proposed rule and statute that allows prisoners to seek a DNA evidence review only two years after they are convicted or after new testing procedures are developed.

Eighteenth Circuit Judge O.H. Eaton, Jr., chair of the Bar's Criminal Procedures Rules Committee -- which drafted the proposed rule -- said the problem with the state law, Ch. 2001-97 (SB 366), is that it only affects those who were found guilty and not those who entered a plea. He said that has implications for the court's habeas corpus powers.

While not appearing at oral argument, House Speaker Tom Feeney, R-Oviedo, did file a brief with the court stating that the proposed rule's expansion of "substantive grounds" authorizing DNA testing for those who plead guilty or no contest "would violate the separation of powers provision of the Florida Constitution."

"To the extent that the rule and SB 366 authorizes defendants to seek DNA testing in cases where their opportunity to seek DNA testing under existing law has already passed, the granting of additional rights to these same defendants enabling them to pursue those claims which would otherwise be barred is substantive in nature and cannot be reasonably construed to be procedural," Feeney said. "Likewise, the use of DNA evidence to mitigate lawful sentences is a legislative creation of a new substantive right. The legislature therefore is not limiting a matter of procedure, and is well within its rights to 'limit' substantive rights that they, and they alone, have the authority to create."

Judge Eaton, however, said the constitution gives the court the right to issue habeas corpus writs and the legislature "has no business trying to curtail that right."

"There have been arguments that claim that what this rule does is to try to expand the statute, and I suggest that expansion vs. curtailment is where we ought to be talking," Eaton told the justices. "What the statute does is curtail this court's right to issue writs of habeas corpus. This rule does not expand that right; the rule simply states it."

Robert Willis, a former chair of the Criminal Procedures Rules Committee and an assistant public defender from Ft. Lauderdale, said to limit the DNA testing remedy only to cases where a trial has occurred, may have an "inhibiting impact" on future plea negotiations.

"What would I advise my client to do in the future?" Willis asked. "I'd say, 'You'd better go to trial because if science comes along with a remedy, I would not be able to make use of it."'

Justice Leander Shaw, however, asked if the court had the authority to extend the pool of those who could use the law.

"The position of the rules committee from the beginning was that under the habeas corpus powers of this court it could address this issue, and that basically the rule that would be adopted would be stating the habeas corpus powers of this court," Willis said. "We went back and used the statute as the starting point, but we fundamentally believed that all of these cases should be included."

Barry Scheck, a DNA expert and director of the Innocence Project in New York, said there have been 94 postconviction DNA exonerations in the U.S., including 11 persons who were on death row, two of whom were in Florida -- Frank Lee Smith and Jerry Frank Townsend.

"Given the way the proposed rule is structured, neither of these individuals would have had the opportunity to get relief because of the two-year time limit," Scheck said, adding that because of the guilty-plea provision, Townsend, who has an IQ of 50, would have been denied an opportunity to get the DNA test. Townsend spent 22 years on death row after pleading guilty to murder before DNA testing recently cleared him.

Scheck also said there are others across the nation who have pled guilty in order to avoid the death penalty, who have since been exonerated by DNA tests.

Chief Justice Charles Wells asked if other states have time-limited DNA rules. Scheck said 22 states now have postconviction DNA statutes, and 16 of those have no time limits whatsoever.

"We've done most of the postconviction DNA tests in the United States, and nine years of experience has shown ... by the time someone tries to find a transcript, the police reports, the lab reports, to make an application under the statute to show a DNA test would raise a reasonable portability they were wrongly convicted and sentenced, certainly two years have passed," Scheck said. "The average time period in our cases approached three to four years for us to get an application out."

Buddy Jacobs, general counsel of the Florida Prosecuting Attorneys Association, opposed calls to open the DNA testing to those who plead guilty, saying the same argument was already raised and rejected by the legislature. He also said those who plead guilty do so under oath and the state takes those pleas seriously.

"On behalf of the state attorneys, we submit to you that the pool should not be expanded," Jacobs said. "We think it makes our system, at best, disingenuous, and it is a thing that has been debated by the legislature, and we hope you do not expand that."

But Justice Shaw asked that if the state's "bottom-line policy" is that innocent people should not be kept in jail, why shouldn't a person who has entered a nolo plea "under pressure and are in fact innocent and can be proven innocent by DNA" be excepted?

"Doesn't that go against our policy, our principle, justice, and everything else?" Shaw asked.

Jacobs said lawyers have a duty not to allow innocent people to plead guilty, and judges have a duty not to accept guilty pleas in "cases like that."

Carolyn Snurkowski of the Attorney General's office said allowing those who plead their case to seek exoneration through DNA evidence would bring into question the validity of guilty pleas in this state "if, in fact, you are ascertaining that a large number of individuals are in fact innocent, and they have pled guilty or nolo contendere."

"If you really look at the notion of nolo contendere, the individual is not saying 'I'm guilty.' He is saying, 'I cannot prove I'm innocent,' and in that sense we have always accepted the notion that nolo contendere pleas are based on a number of reasons, and we don't question the defendant with regard to why he is in fact engaging in that," Snurkowski said. "That is not to say the state is standing up here before the court and suggesting anyone who is innocent should be incarcerated."

Other differences between the proposed rule and the statute include:

* Subdivision (c)(7) provides for FDLE (or its designee) to conduct the testing, but also authorizes the trial court, upon a showing of good cause, to order testing by another laboratory or agency. The rules committee was of the opinion that the trial court has that inherent authority and that there may be cases in which testing by FDLE would be suspect. Additionally, in non-indigent cases, private counsel may prefer testing to be done by an independent laboratory. The committee said that provision also satisfies legislative concern that FDLE may not be able to absorb the number of cases expected by that agency.

* The proposed rule, in subdivision (d)(B)(2), provides that a motion for postconviction relief based solely on the results of court-ordered DNA testing may not be subject to the time limitations in Fla. R. Crim. P.3.850-3.851 and may not be considered a "successive motion." The legislation does not contain a similar provision.

* The proposed rule contains a provision that tolls the time for filing a notice of appeal if a motion for rehearing is filed. The legislation does not contain a similar provision.