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IN THE SUPREME COURT OF FLORIDA
ZUOq DEC I' P 4: 03
IN RE: PETITION OF LA WYERS FOR
RULE ESTABLISHING A FLORIDA
ACTUAL INNOCENCE COMMISSION
PETITION FOR A RULE ESTABLISHING
AN ACTUAL INNOCENCE COMMISSION
Pursuant to Article V, Sections 2 and 15, Constitution of Florida, and
Florida Rules Governing Lawyers, the Petitioners, through undersigned counsel,
move the Court for a rule creating a Florida Actual Innocence Commission. The
purpose of the Commission would be to investigate the circumstances of cases
where actual innocence of a crime has been demonstrated and to develop
recommendations for reforms to reduce wrongful convictions. As grounds for this
petition, Petitioners state:
In recent years, at least eleven innocent Florida citizens have been convicted
and wrongfully imprisoned. 1
1 Innocence Project of Florida: http://floridainnocence.orglcontentl?page_ie=34.
They are: Orlando Boquete, Larry Bostic, Alan Crotzer, Cody Davis, Wilton
Dedge, Luis Diaz, William Dillon, Chad Heins, Juan Melendez, Frank Lee Smith
and Jerry Frank Townsend. Id
Many newspapers have called for investigation. 2 Still, there never has
been a comprehensive examination of the facts of these cases nor any official
analysis of potential reforms in court procedures, improvements in attorney
training, consideration of evidence rules, development of new ethical standards, or
other steps to reduce the number of wrongful convictions. 3
Wrongful conviction harms society in a number of ways. The innocent
citizen suffers loss of income, damage to reputation, stress on family members, and
exposure to brutal prison conditions. The State must spend money to feed, clothe,
shelter, and provide health care for the wrongfully imprisoned; then, after
exoneration, the State faces the prospect of paying compensation for the wrongful
2See: See Editorial, Our Views: Justice Ignored, Florida Today. (Nov. 6,2009);
Editorial, Latest Innocence Case Raises Specter ofInjustice, Daytona Beach News
Journal, (Nov. 18,2008); Editorial, Our Views: An Innocent Man?, Florida Today,
(Oct. 14, 2007).
3An American Bar Association study of capital punishment in Florida called for a.
number of reforms, including the establishment of such a commission. See:
American Bar Association, Evaluating Fairness and Accuracy in State Death
Penalty Systems: The Florida Death Penalty Assessment Report at ix (2006).
Most important, when an innocent person is imprisoned, the actual criminal
goes free and remains a danger to society. Developing measures to protect the
innocent will make it more likely that the guilty person is caught and prosecuted.
The classic rationale for establishing an innocence commission was
advanced by Barry Scheck and Peter Neufeld in Judicature (Sept. - Oct. 2002t:
In the United States there are strict and immediate investigative
measures taken when an airplane falls from the sky, a plane's fuel
tank explodes on the runway, or a train derails. What went wrong?
Was it system error or an individual's mistake? Was there any
official misconduct? And, most important of all, what can be done
to correct the problem and prevent it from happening again?
Indeed, since the primary purpose of the NTSB is to protect the
public safety, it will sometimes issue safety recommendations
before its investigation of a crash is complete, recommendations
identifying problems that may not even turn out to be the ultimate
cause of the crash.
The American criminal justice system, in sharp contrast, has no
institutional mechanism to evaluate its equivalent of a catastrophic
plane crash, the conviction of an innocent person. In fact, an
emphasis on finality and procedural due process in our post
conviction procedures has for too long obscured both the frequency
and implications of wrongful convictions. This point is vividly
illustrated by the 110 post-conviction exonerations that have
occurred in the United States in the 10 years preceding September
4Barry Scheck & Peter Neufeld, Toward the Formation of "Innocence
Commissions" in America, 86 Judicature 98, (2002). Other articles on innocence
commissions include: Keith A. Findley, Learningfrom our Mistakes: A Criminal
Justice Commission to Study Wrongful Convictions, 38 Cal. W. L. Rev. 333
(Spring 2002). These articles list other examples, notably in the area of health
care, of institutions that are designed to study errors and recommend procedures to
help prevent future errors.
A number of states have established innocence commissions to address the
issues of actual innocence. States that provide useful parallels include California,
Connecticut, Illinois, New York, North Carolina, Pennsylvania, Texas, and
Wisconsin. These commissions offer a variety of models.
Some have been established through legislation, others by Court order, while
one is a non-government organization. 5 Some operate for a limited time and others
are permanent. Some, like the Inquiry Commissions of Canada and the British
Criminal Case Review Commission, examine the facts of individual cases, while
others to assess the criminal justice system.
From these examples, the Petitioners respectfully submit that the model most
appropriate for Florida is the commission in North Carolina, which was created by
Court order. In 2002, then Chief Justice I. Beverly Lake, Jr., established the North
Carolina Actual Innocence Commission, which was formalized by court order in
2005. The purpose of the Commission is
... to provide a forum for education and dialog among prosecutors,
defense attorneys, judges, law enforcement personnel, legal
scholars, legislative representatives and victim advocates regarding
the common causes of wrongful conviction of the innocent and to
develop potential procedures to decrease the possibility of
conviction of the innocent in North Carolina, thereby increasing
conviction of the guilty. (Mission Statement, North Carolina Actual
5The Virginia Commission, a non-government organization, is the subject of a
book: Jon B. Gould, Innocence Commission (New York University Press 2008).
Innocence Commission. 6 )
A copy of the 2005 order and the Mission Statement, Objectives and
Procedure are attached to this Petition as Composite Exhibit A. 7
The work of the North Carolina Commission is detailed on the web site of
its support organization (http://www.nccai.org/) and it includes recommendations
to deal with such subjects as mistaken eyewitness identification, improper
collection, labeling and preservation of evidence, false confessions,
police/prosecution tunnel vision, and inadequate defense. The exonerations in
6 Ultimately, the Court-appointed Commission recommended the enactment of a
law establishing the North Carolina Innocence Inquiry Commission to provide an
"independent and balanced truth-seeking forum for credible claims of innocence."
In 2006, the legislature enacted that law. See: http://www.innocencecommission
nc.gov/. Given the operation of the Florida post-conviction procedures, the
Petitioners do not seek the establishment of such a Commission.
7The New York Commission was established by Court order in 2009, but has not
had time to fully develop its program. See:
www.nytimes.com/2009/0 1/0 1innocence.html In announcing the Commission,
Chief Judge Jonathon Lippman stated:
But while every wrongful conviction is a tragedy, it is also a unique
and valuable opportunity to identify and understand what went
wrong with the criminal justice process. What was it that misled
police and prosecutors? What was it that caused juries and courts to
find an innocent person guilty beyond a reasonable doubt? What
patterns keep repeating? What flaws in the system must be
remedied? As investigators, prosecutors, defenders, judges and
policymakers, what reforms and protocols can we adopt to avoid the
risk of wrongful convictions?
Florida have shown that some of the same problems exist in this state's criminal
In 2003, William S. Sessions, the former federal judge and Director of the
FBI under three presidents -- two Republican and one Democratic - authored a
newspaper commentary that presented the case for a commission. After reviewing
problems with wrongful convictions in Texas, he stated:
.. , When miscarriages of justice like these occur, we should have a
mechanism for investigating and addressing their root causes.
Our criminal justice system is plagued by many other problems.
These problems likely contribute to innocent people being convicted
and guilty ones remaining free to commit more crimes.
But while these accounts are documented and the courts and the
Legislature have sometimes stepped in to correct the problems, it's
not enough to look at the system case-by-case.
We need a creditable, objective and expert look at the system as a
whole. The Innocence Commission would investigate these
postconviction exonerations with an eye to evaluating the entire
system. It would recommend ways to see that we send the right
people to prison and death row ... 8
Florida courts have had a major role in fashioning reforms on subjects like
open government, interest on lawyer's trust accounts to support legal services,
development of litigation alternatives, drug courts, mental health courts, support
for pro bono services and a number of other significant initiatives. Now, faced
8William Sessions, Texas' Criminal Justice System is at an Important Crossroads,
San Antonio Express-News, May 14, 2003. Judge Session's was arguing in this op
ed piece for legislative action but the same logic supports this Petition.
with a significant number of cases clearly demonstrating that the system is
convicting innocent citizens, the Court is urged to use its rule-making powers to
establish a commission similar to that of the North Carolina Actual Innocence
Commission. Such a commission should not require major resources because it
would draw on the services of many people who already hold office. Many court
committees have been organized this way. To the extent that a budget is required,
the Court could point out to the legislature the significant savings that can be
achieved through reform and can seek funding from other sources, including
Common sense and a commitment to improving judicial administration
support the petition. The use of such a commission in Florida has important
precedent. The appointment of the Commissions to study Racial and Gender Bias
in the Justice System led to important recommendations. That work has been
continued through the Standing Committee on Fairness and Diversity.9 According
to the Court's web page, "The committee was established to advance the State
Courts System's efforts to eliminate from court operations inappropriate bias based
on race, gender, ethnicity, age, disability, or socioeconomic status." There are
other examples of the Court's use of its rule-making power to improve the
9On December 3,2008, the Chief Justice issued an order extending the term of the
Standing Committee on Fairness and Diversity.
THEREFORE, Petitioners request the Court to adopt a rule establishing the
Florida Actual Innocence Commission, patterned after the North Carolina Actual
Innocence Commission, and providing for the membership, mission, objectives,
and procedure of the commission.
Florida Bar #0017529
0' Alemberte & Palmer, PLLC
P.O. Box 10029
Tallahassee, Florida 32302-2029
Attorney for Petitioners
CERTIFICATE OF SERVICE
I certify that I have provided copies of this Petition to the Clerk of the
Florida Supreme Court and the Executive Director of The Florida Bar this 11 th day
of December 2009 and further certify that the attached list of lawyers have given
their permission to list them as petitioners.
ci~ ~ On:t;
Talbot D' Alemberte
Florida Bar #0017529
D' Alembe11e & Palmer, PLLC
P.O. Box 10029
Tallahassee, Florida 32302-2029
• NorttCa~olina Actual Innocence Commission - Mission 12/11/0911:49 AM
NORTH CAROLINA ACTUAL INNOCENCE COMMISSION - MISSION STATEMENT, OBJECTIVES, AND
I. Mission Statement
The North Carolina Actual Innocence Commission is established to provide a forum for education and dialog
among prosecutors, defense attorneys, judges, law enforcement personnel, legal scholars, legislative
representatives, and victim advocates regarding the common causes of wrongful conviction of the innocent
and to develop potential procedures to decrease the possibility of conviction of the innocent in North Carolina,
thereby increasing conviction of the guilty.
Members of the Commission have varying viewpoints with regard to capital punishment and the necessity for
a moratorium in North Carolina. Members unanimously agree that the Commission will not take a position on
these issues and that individual Commission members will not represent their personal viewpoints on these
issues as being shared by other Commission members or the Commission as a whole.
II. Problem Summary
Recent developments in DNA testing have confirmed the long standing fear that, despite the superior nature
of our justice system, there still exists the possibility that individuals can be convicted of crimes they did not
commit. Exoneration cases in North Carolina include Ronald Cotton, Leslie Jean, Leo Waters all of whom
were exonerated by DNA; and Terrence Garner, Charles Munsey, and Tim Hennis, whose exonerations were
not based on DNA. Although it is believed that the risk of conviction of an innocent person is small in North
Carolina, the cause of even one innocent conviction should be identified and corrected if possible. Wrongful
conviction of the innocent not only destroys the lives of those convicted and their families; it allows the actual
perpetrator of the crime to go unpunished and to be free to potentially commit additional crimes. Additionally,
injustices negatively impact public trust and confidence in the justice system.
III. COMMISSION BACKGROUND
On November 22, 2002, North Carolina Chief Justice \. Beverly Lake invited key representatives from the
criminal justice system and legal academic community to meet with him to discuss the issue of the wrongful
conviction of the innocent. The impetuses for the meeting were the recent exonerations in North Carolina and
the Chief Justice's continued concern regarding the general public's negative perceptions and decreasing
confidence in the justice system.
Discussion during the meeting on November 22nd was candid and productive, with agreement among
representatives that causation issues associated with conviction of the innocent need to be understood by all
members of the enforcement and justice system and that corrective options should be identified and actions
implemented where possible. The Chief Justice thereby made the decision that a working study commission
should be established.
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· No~c(rolina Actual Innocence Commission - Mission 12/11/0911:49 AM
" The primary objective of the North Carolina Actual Innocence Commission is to make recommendations
which reduce or eliminate the possibility of the wrongful conviction of an innocent person. Through its work,
the Commission hopes to raise awareness of the issues surrounding wrongful convictions. It is anticipated
that accomplishment of this objective will increase the conviction of the guilty, positively impact public trust
and confidence in the State's justice system, and decrease the overall cost of the prosecution, trial and
Specific Commission objectives are:
1) To identify the most common causations of conviction of the innocent, both nationally and in
2) To provide education to members regarding each type of causation.
3) To provide a forum for open and productive dialog between Commission members regarding
each type of causation.
4) To identify current North Carolina procedures implicated by each type of causation.
5) To identify, through research, experts, and discussion, potential solutions in the form of
procedural or process changes or educational opportunities for elimination of each type of
6) To consider potential implementation plans, cost implications, and the impact on conviction of
the guilty for each potential solution.
7) To issue interim reports recommending solutions for each causation issue identified, including
recommended implementation plans, cost implications, and potential impact on the conviction of
V. Rules of Procedure
(a) The Commission will meet once every six to eight weeks.
(b) The Commission shall meet at such time and place as determined by the chairman
announced at least one month in advance of meetings with notice to each member.
(c) To the extent possible meetings will take place during lunch time or after business hours to
minimize disruption to work routines.
(d) At all meetings, fifteen shall constitute a quorum for the transaction of business. Voting may
be in person, by proxy, by letter or by telephone. Any matter or proposition discussed shall not
be binding upon the Commission without the affirmative vote of at least half of the number of the
current membership of the Commission. Additionally, a representative from prosecution, defense,
law enforcement, judiciary, and victim assistance network is required to be present at any
meeting where a majority vote is reported.
(e) Although the Commission will benefit from the expertise of its membership, it will be
necessary to provide the Commission members with research materials as topics are reached. A
research analyst will conduct research and accumulate and distribute materials; however,
members will be encouraged to discuss issues with the constituencies and come to meetings
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North Carolina Actual Innocence Commission - Mission 12/11/0911:49 AM
prepared as representatives to discuss the viewpoints of members of their area of expertise.
Additionally, experts from North Carolina and other states will be invited to speak to the
Commission as topics are reached.
(f) Studies and surveys of North Carolina practices will likely be conducted as part of the
(g) Topics to be studied by the Commission may include eyewitness identification procedures,
DNA evidence/testing, false confessions, discovery and disclosure, informant/accomplice
testimony, law enforcement and attorney investigation procedures, rules of professional conduct
and their interplay with innocence, and the post conviction review of claims of actual innocence.
A concrete topic list will not be established, as it is antiCipated that issues will be raised and
considered throughout the Commission's work.
(h) Local law school students will be recruited to assist with research for the Commission.
Additional research may be contracted out.
(i) The Commission may look at individual cases where innocence has already been proven for
the purpose of identifying causations of those convictions. However, unproven innocence claims
will not be reviewed.
G) Written minutes will be kept of all meetings.
(k) All research will be organized and consolidated for future reference.
(I) The Commission will issue interim reports outlining its findings and recommendations as the
study of each topic area is completed. Additionally, the Commission will issue a final report
outlining all findings and recommendations.
(m) The Commission will hereafter adopt any additional rules as are necessary to carry out its
VI. Commission Composition
The Commission is a "working" commission of no more than thirty members, invited to participate at the
discretion of the Chief Justice. Individuals who are invited to participate will be reminded of the substantial
commitment of time and energy that may be requested of them.
Additional expertise and constituent representation may be provided by organizing the Commission into task
forces, with persons in addition to Commission members being asked to serve on each task force. However,
the majority of the Commission's work will be done as a whole and not as task forces.
Initial Commission members were invited to voluntarily participate in the Commission's work based upon
individual competence, experience, and anticipated commitment. Invitations were further based on the need
for the Commission to be diversely representative of the criminal justice system.
Although members are invited to participate at the discretion of the chair, representation must include at least
one member from the following constituencies: prosecution, defense, law enforcement, judiciary, and victim
assistance network. The specific number of representatives from each constituency will not be established
and may vary over the life of the Commission at the discretion of the chair.
The initial representation of the Commission is made up of three judicial representatives, two representatives
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\ Nortffocirolina Actual Innocence Commission - Mission 12/11/0911:49 AM
from the Governor's office, three defense attorneys, six law enforcement representatives, five prosecution
representatives, three law professors, one victim assistance representative, one journalism professor, and two
general interest representatives. Following is a list of the initial roster of Commission participants.
The Honorable Bryan E. Beatty, Secretary of Crime Control and Public Safety
Robert Brown, Jr., Public Defender, Durham County
Professor James Coleman, Duke University Law School
The Honorable Roy Cooper, North Carolina Attorney General
Chief Michael R. Gauldin, Burlington Police Department
The Honorable Donald Harrison, Sheriff, Wake County
Malcolm R. Hunter Jr., Executive Director, N.C. Office of Indigent Defense Services
The Honorable Robert F. Johnson, District Attorney, Alamance County
The Honorable William Kenerly, District Attorney, Rowan County
The Honorable I. Beverly Lake, Jr., N.C. Supreme Court Chief Justice
Chris Mumma, Legal Counsel, N.C. Center on Actual Innocence
Associate Dean Theresa Newman, Duke University Law School
The Honorable Robert Orr, N.C. Supreme Court Justice
Robin Pendergraft, Director, N.C. State Bureau of Investigation
Donna Pygott, N.C. Victims' Assistance Network
Professor Richard Rosen, UNC School of Law
The Honorable Thomas W. Ross, Executive Director, Z. Smith Reynolds Foundation
Chief Darrel Stephens, Charlotte-Mecklenburg Police Department
The Honorable Donald Stephens, Senior Resident Superior Court Judge, Wake County
Dick Taylor, Executive Director, Academy of Trial Lawyers
Thomas Walker, N.C. Assistant Attorney General
Pete Weitzel, Executive Director, N.C. Center on Actual Innocence
The Honorable Colon C. Willoughby, Jr., District Attorney, Wake County
Nina Wright, Deputy Chief, Charlotte-Mecklenburg Police Department
Reubin Young, Deputy Legal Counsel, N.C. Governor's Office
These individuals offer differing perspectives and expertise that will enable the Commission to meets its
overall mission and specific objectives.
Senate and House representatives will be added to the Commission at a later date. Additionally, Commission
members may suggest the addition or substitution of members as the work of the Commission progresses
and/or if a current member is unable to participate on an ongoing basis.
It is anticipated that the work of the Commission will take approximately two years. With the exception of the
chairman, members of the Commission serve on a voluntary basis and are invited to serve for two years.
However, Commission members may provide for termination of membership of a member under appropriate
circumstances and upon approval of the Chief Justice as chair.
The officers of the Commission shall be a chairman, an executive director and/or vice chairman, a secretary
and a treasurer. The Commission's chair will be the Chief Justice or his designee. The executive director
and/or vice chairman, the secretary and the treasurer shall be elected by the Commission on
recommendation of the chairman.
The executive director will be responsible for supervisory and administrative responsibilities; performing and
compiling research, data and reports; identifying and coordinating expert testimony where appropriate; and
assuming an oversight role by developing expertise in, keeping abreast of, and contributing to the substantive
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• North Carolina Actual Innocence Commission - Mission 12/11/0911:49 AM
work of the Commission and task forces. Research associates, through law school externships and volunteer
student work, as well as contractor services, will assist the executive director with these tasks.
A grant application for $37,250 annually has been submitted to the Governor's Crime Commission. Funds will
be paid through and managed by the AOC, as a receipt-supported activity. With the assistance of the AOC's
grants administrator, Commission staff will process requisitions and other expense documentation. Grant
funding will be used to cover copying, mailing, meeting expenses, expert travel expenses and consulting fees,
and contractor services for excessive administrative or research needs.
Commission members will be donating their time, energy and expertise. Expenses for travel by Commission
members will be paid through grant funds.
IX. Effective Date
The effective date of the organization of the NC Actual Innocence Commission shall be deemed to be
February 14,2003 as of the time of the initial meeting of the full body of the Commission as reflected by the
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List of Petitioners FILED
THOMe\S D. HALL
znoq DEC " P 4: 03
Name Bar # ('I E'~K • S'Ufp~""
'...... ,\ htME COURT
8Y_ _ _ __
Apellaniz, Hugo 68130
Anderson, Gail 841544 ~.
Anstead, Harry Lee 0002060
Barnett, Martha Walters 0160404
Been, Steve 335142
Carey, Nand 648825
Carlyle, Christopher V. 991007
Carlyle Shannon McLin 988367
Coxe, Henry 0155193
D'Alemberte, Gabrielle 0169722
D'Alemberte, Talbot 0017529
Dalton, Jr., Roy B. "Skip" 228753
Daniels, Nancy 242705
DeFoor, Allison 0279536
Duvall, Jeffrey 198765
Ehrhardt, Charles W. 151073
Ellis, Mark 0464414
England, Arthur 002730
Goshorn Jr., Gilbert S. 30457
Greenberg, Jennifer 938513
Hanlon, Stephen 209430
Harper, Robert Augustus 127600
Hedrick, John 507563
Hendrickson, Dan 759510
Hobbs, Chuck 194433
Holton, Leonard 199915
Jones, Tiffany 44294
Julin, Tom 0325376
Kerrigan, Bob 134044
Kogan, Gerald 0043950
Lewis, Susan 243159
Lord, Mary Jane 305480
Lyons, Doug 128277
Lyons, Marsha 128281
MacNamara, Stephen R. 370266
McLain, William C. 201170
McMullen, Carrie 659274
Miller, Seth 0806471
Mills, John 0107719
Minerva, Michael J. 92487
Montie, Melissa 0659444
Moody, Nina 474193
Olive, Mark 0578533
Owen, Bill 0105417
Palmer, Patsy 0041811
Patterson, Phil 444774
Peterson, Jr., Earle W. 0062777
Petry, Roderick 0128918
Reeves, Glenna Joyce 0231061
Rost, Scott 779385
Rothman, David 240273
Ruiz, Roger 10079
Schulz, George E. 169507
Schlakman, Mark 0843067
Schulz, Buddy 169507
Shorstein, Harry 0093316
Snyder, Florence Beth 214590
Sonnett, Neal 105986
Stover, Kathleen 513253
Thomas, Andrew 317942
Tomasino, John 106021
Uhlfelder, Steve 139581
Ward, Justin 728616
Warren, Thomas A. 0176730
Webb, James Henry 185176
Name Bar #
Wiggins, Victoria 081019
Witt, Kay 145009
Yeary, Jessica 71262