The arbitrariness in the treatment of evidence of actual innocence.

The arbitrariness in the treatment of evidence of actual innocence.

While the State of Florida has recently passed legislation to allow capital defendants the opportunity to seek DNA testing, most of the exonerated defendants`cases, had no connection to favorable post-verdict DNA results.

Yet, the State of Florida has not made any substantive or procedural improvements for those who have no DNA evidence in their case, but could show innocence through the use of other evidence.

Indeed, while the State of Florida has now removed the time limitation for bringing a motion seeking DNA testing, see Fla. Stat. ' 925.11 (1)(b) (2006); Fla. R. Crim. P. 3.853, capital postconviction defendants, like Mr. Rutherford, must prove due diligence in bringing their claims of innocence.

Indeed, the Florida Supreme Court has held that it would not consider evidence of innocence presented in a successive collateral motion where the circuit court had found that the capital defendant`s attorney had not been diligent in uncovering and presenting the evidence that demonstrated innocence. Swafford v. State, 828 So. 2d 966, 977-78 (Fla. 2002).

In fact in Swafford, three justices dissented on the grounds that the new evidence would have probably produced an acquittal had it been presented to the jury. Id. at 978-79 (Anstead, J., dissenting)

(This case represents one of those truly rare instances where this Court has summarily brushed aside on wholly speculative grounds a colorable claim of actual innocence and a possible serious miscarriage of justice. There has been absolutely no focus here on the reality of what actually happened..

In yet another case, the Florida Supreme Court, while considering some of the newly discovered evidence presented in a successive collateral motion, excluded from its consideration certain other pieces of the newly discovered evidence.

The Florida Supreme Court deferred to the circuit court`s conclusion that Leo Jones had failed to prove his diligence in uncovering certain pieces of newly discovered evidence, and excluded evidence of another man`s confession as inadmissible hearsay. Jones v. State, 709 so. 2d 512, 519-20, 525 (Fla. 1998).

In Jones, two justices dissented. See Id. at 527 (Anstead, J. dissenting) (this case is troubling because of the sheer volume of evidence present in the record that another person committed the murder, and, yet, none of this evidence was heard by the jury that tried and convicted Jones); Id. at 535-36 (Shaw, J., dissenting)

(The collateral process in Florida's capital sentencing scheme is a constitutional safety net designed above all to prevent the execution of an innocent man or woman.

The present case is a classic example of that safety net working properly--up to the present point.

Although Jones was tried and convicted in 1981, much of the present evidence did not--could not--come to light until now, more than a decade later--after Officer Smith and Schofield's accusers came forward.

This evidence vastly implicates Schofield and casts serious doubt on Jones' guilt. The case that stands against Leo Jones today is a horse of a different color from that which was considered by the jury in 1981.

Fairness, reasonableness and justice--and indeed, the integrity of Florida's capital sentencing scheme--dictate that a jury consider the complete case.).

A system that precludes the presentation of evidence of innocence in a form other that the results of DNA testing injects arbitrariness and randomness into the process in violation of Furman.

It simply defies logic to require an innocence man to be executed because his attorney failed to prove diligence in discovering the evidence that proves his innocence.

As was noted in Furman, any judicial system with procedural and substantive protections for an accused will result in errors; innocent individuals will be convicted. Furman, 408 U.S. at 366 (Our beyond a reasonable doubt burden of proof in criminal cases is intended to protect the innocent, but we know it is not foolproof.

Various studies have shown that people whose innocence is later convincingly established are convicted and sentenced to death.).

Yet, not only does empirical evidence now demonstrate that Florida has the highest exoneration in capital cases of any state, nothing has been done to investigate, find out why, and attempt to remedy the matter.

Having such knowledge and experiencing such a situation first-hand in Florida, the courts and government have ignored the arbitrariness that accompanies the determinations that one type of proof of innocence is less valuable than another; one type qualifies for less procedural restrictions than another; and one type imposes less hurdles to be cleared before consideration of the evidence on the merits.

While DNA is a powerful tool in proving innocence, the recantation of witness testimony, confession by another individual to a third-party and other scientific improvement may be equally revealing. See House v. Bell, 126 S.Ct. 2064 (2006).

And, while there may be a more obvious issue of credibility attached to evidence of recantations, confessions and other scientific advances than may not be present with DNA, that does not mean that there will not be credibility issues raised as to the accuracy of DNA results.

It is simply arbitrary to place a diligence requirement when dealing with a particular type of evidence of diligence, but not another. See Jones; Swafford.

18. Florida`s decision to ignore the need for an actual innocence exception which allows an individual to defeat procedural bars and to demonstrate innocence has created a system that tolerates and accepts the risk of executing an innocent individual.

Though it has made an exception for new evidence in the form of the results of DNA testing, Florida has refused to apply the rationale for such an exception to its procedural bars (i.e. innocent people should not be locked up in prisons) across the board to all evidence of innocence.

As a result, Florida`s capital sentencing scheme violates the principles enunciated in Furman.