Dear Sis
I got a haircut this morning, certainly the worst in my life. Mine was the first hair that this guy - a fellow death row prisoner - had ever cut, and it shows! Rob, our regular barber, lost his barber job when they first signed his death warrant several months ago, and so they made this guy a barber. Anyway, I've got about six weeks until our visit which should be sufficient time for my hair to grow enough to eliminate the laugh factor.
In my August 2nd USA Today there was a story about a guy who was freed form prison after 17 years, after new DNA testing showed that he was not guilty. This is an unexceptional story; I read similar stories about once a week & I've been reading them for many years. Then in tonight's USA Today there's a story about Luis Diaz, from Miami, freed after 26 years in prison following DNA tests proving that he was not the infamous "Bird Road Rapist." I know Luis (not real well, though) and I remember the case very well. In the late 70's the "Bird Road Rapist" was terrorizing Bird Road, in Miami/Coral Gables, and there was tremendous pressure on the police to arrest somebody. Being that Bird Road is in our old neighborhood I followed the case from my pre-death row cell. When they finally arrested Luis, they trumpeted the news and assured the public that they had the right man, even though they had no physical evidence against him. All of the cases were based upon "positive ID's" by victims, and those ID's were induced by/via hokey police procedures. Even back then, in 1979-80, I sensed that it was a very suspect case, but the railroad train was already barreling down the tracks. Diaz ended up with at least 7 life sentences (his sentencing judge, Judge Durant, famously told Diaz from the bench that "in all my years as a judge I have never seen such overwhelming evidence of guilt." That was an absurd statement at the time, but Judge Duran was playing to the audience). Years later, two of the victims recanted their identifications and those two convictions were subsequently reversed. But that left him with five life sentences. Finally, Barry Scheck and his Innocence Project got involved. The State vigorously fought any DNA testing, naturally. Now, after 26 years Diaz is finally free (they ran this story on ABC World News last night, too).
Anyway, I cut out both articles & mailed them to my lawyer, explaining that they are representative of articles I see almost daily. The central issue in my soon-to-be-filed certiorari petition involves DNA testing of the blood evidence. And, last month, the US Supreme Court agreed to hear a Tennessee death row case where the issue involves post-conviction DNA testing. It appears that the Supreme Court, in this Tennessee case, is prepared to make a major decision regarding the importance of post-conviction DNA testing. My case is right on its heels, so I want my attorney, in our cert petition, to use available statistics to back up and emphasize our point that such DNA exonerations are routine nowadays. I want to stress the usefulness and necessity for DNA testing, to counter the Florida Supreme Court's holding in my case that DNA evidence proving I was not the triggerman would not have made any difference to my jury and judge. In essence, I want our cert petition, at least in part, to be a referendum on the whole issue of post-conviction DNA testing. My cert is due on or around October 15th...
That's it for now, Sis. Give Keesha a pat on the head for me!
Love & peace,
Bill
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Make DNA testing routine practice
BY JENNIFER SANTIAGO
jsantiago@wfor.cbs.com
In February 2002, I interviewed Barry Scheck, co-founder of the Innocence Project, a New York-based legal center that works on post-conviction cases involving DNA, for a story on Florida's flawed capital-justice system and the group's efforts to free the wrongly convicted. The Innocence Project helped win the release last week of Luis Díaz, the wrongly convicted ''Bird Road rapist,'' based on DNA tests.
Florida leads the nation in the number of Death Row inmates exonerated because of DNA. I learned through research that access to post-conviction DNA testing is essential to ensure the right person does the time for the crime. Our justice system is wrought with flaws. Science speaks truths. Prosecutors, detectives, witnesses and victims sometimes do not.
Shortly after our interview, Scheck and the law school students who work on the project celebrated a revision to existing New York legislation that guaranteed an inmate access to DNA testing and eliminated the earlier requirement that the conviction must have come before 1996. And in October 2004, Congress passed the Justice For All Act, granting any federal inmate the right to petition a federal court for DNA testing to support a claim of innocence.
Florida, however, has no comparable law for those convicted in state court. Instead, in 2001, after the DNA exoneration of a Death Row inmate who had died before his execution, the Florida Legislature passed a law giving inmates the right to apply for post-conviction DNA testing if they could show that the test results were likely to exonerate them. The right was available only to those who had pleaded not guilty. But sometimes the accused will accept a plea deal for reasons that have nothing to do with actual guilt.
In addition, the law applied only to those who could make their case within two years. The right to DNA testing in Florida expired Oct. 1, 2003. It was later extended to October of this year after lawyers with the Innocence Project filed suit in the Florida Supreme Court. On Friday, Gov. Jeb Bush ordered police agencies not to destroy DNA evidence.
Luis Díaz was convicted based almost exclusively on eyewitness testimony. One woman after another pointed at the 134-pound fry cook, swearing he was their assailant. Not a single piece of physical evidence linked Díaz to the rapes. In fact, the initial description provided to police by a victim in 1977 described an attacker who weighed approximately 200 pounds and stood at least 6 feet tall. Díaz is 5 foot 3.
What most lay people do not realize -- certainly the Díaz jury did not -- is the inherent unreliability of victim and witness identification. According to Innocence Project research, mistaken identification is the No. 1 factor leading to wrongful convictions. Science provides the only irrefutable and reliable evidence. Science cannot be manipulated by zealous prosecutors or clouded by memory lapses.
Newspaper and television reports showed Díaz leaving the Richard E. Gerstein Justice Building last Wednesday, flanked by his family and Scheck, flashing peace signs and the kind of smile you would expect from a 67-year-old man drawing his first breath of freedom in more than 26 years.
I can't even begin to imagine how much money it would take to compensate an innocent man for spending decades in prison. Nineteen states do attempt to right the wrong with cash, including Alabama, California and Tennessee. In the Justice For All Act, Congress increased the amount of compensation for those wrongfully convicted of federal crimes to up to $100,000 a year for those exonerated from Death Row and $50,000 a year for others.
But like its ungenerous DNA-testing policy, Florida does not offer a cent. There is no compensation law on the books, so there is no guarantee that money will be forthcoming when the innocent are forced to face a new life out of prison where freedom is often best supplemented with a paycheck.
It is time for Florida to guarantee DNA testing for any inmate who requests the test -- when the material is available, without conditions -- and to compensate the wrongfully convicted by enacting appropriate legislation. Fairer laws would have guaranteed an aging, innocent Luis Díaz a few more breaths of precious freedom and compensate him for those many lost years.
Jennifer Santiago is a reporter for CBS 4 News.
http://www.miami.com/mld/miamiherald/news/opinion/12327931.htm
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