Petition for a Rule Establishing an Actual Innocence Commission

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                                                                   TUOMII ('
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                     IN THE SUPREME COURT OF FLORIDA
                                                                  ZUOq DEC I' P 4: 03
                               Case No.



      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 ( 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 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: 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

justice system.

      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.


administration ofjustice.

      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.

                                    Respectfull y,

                                    ~D~ o...L..
                                    Talbot D'Alemberte
                                    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


                                                            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.

                                                               IV. OBJECTIVES                                        Page 1 of 5
· 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
    appeal processes.

    Specific Commission objectives are:

            1) To identify the most common causations of conviction of the innocent, both nationally and in
            North Carolina.

            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
            the guilty.

                                                            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 	                                        Page 2 of 5

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
            Commission's work.

            (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                                          Page 3 of 5
\ 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.
                                                                   VII. Officers

    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                                      Page 4 of 5
   ,   ... 

• 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.

                                                                     VIII. Funding

      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

                                               Page 5 of 5
                             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 


     Name                      Bar#

     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

    Name                      Bar#

    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


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