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Innocence Project
Nova ends DNA reviews
By Julie Kay
May 24, 2005
The Florida Innocence Project outpost at Nova Southeastern University law school has stopped accepting new cases because it doesn’t have the resources to handle the hundreds of requests for help from felons who claim they were wrongfully convicted.
Just one Florida Innocence Project office in Tallahassee will be left to handle an estimated 700 requests by prisoners for DNA testing to determine whether they were wrongfully convicted. That office has only until Oct. 1 to complete the testing.
Existing South Florida cases are being placed with private pro bono lawyers and new cases that come into the Nova office will be referred to the Tallahassee office.
In its recently concluded session, the Florida Legislature did not act on a proposal to extend the DNA testing deadline, which it established in 2003 for processing requests for testing for people convicted before October 2001. On Oct. 1, unless the deadline is extended by the Florida Supreme Court, law enforcement agencies will be free to destroy all DNA evidence from those inmates.
“It will be very, very difficult to get all the work done that needs to be done in Florida now,” said Maddy Delone, executive director of the New York-based Innocence Project, which is dedicated to exonerating wrongfully convicted felons. “We’re sorry that the Nova project can’t continue. Hopefully, the lawyers in Florida will step forward and help out.”
The Innocence Project is a nationwide nonprofit group, with offices in nearly every state, that is headed by prominent criminal defense attorney Barry Scheck. The local programs, usually based at law schools or large law firms, accept requests from inmates for DNA testing, file requests with judges to conduct the testing, coordinate with DNA labs and then follow through with litigation seeking exoneration.
Dozens of persons around the country were found to be wrongly convicted and exonerated through DNA evidence.
Over the years, the program has encountered considerable resistance from elected officials and law enforcement officials, who have balked at allowing DNA testing and at reopening long-closed convictions. The Florida Legislature initially was resistant to allowing DNA testing in older felony cases.
Nova Southeastern’s program, which began in 1999, was the first such program in Florida. In an interview, Catherine Arcabascio, the founding director of Nova’s Innocence Project, said her program will no longer accept any new cases from inmates. The program was dealt a serious blow last year when it lost its litigator and co-director, Craig Torcino, who moved to northern Florida to take a job with the 10th Circuit public defender’s office.
In an interview, Torcino said he was “burnt out” by the consuming work of the Innocence Project. “It’s definitely overwhelming,” he said. “It was an avalanche. The dam broke, as word of mouth grew among the inmates. We went from three cases to 500 cases in six months. It was personally rewarding and financially devastating for me.”
Arcabascio and Torcino, an adjunct professor at Nova, handled requests from inmates for DNA testing and, with the help of Nova criminal law students, screened the requests, sent the valid ones to DNA labs, filed preliminary court filings and found pro bono lawyers to handle the more complex litigation.
“This has been a huge undertaking,” said Arcabascio, who is also a law school professor at Nova. “It got to the point from my perspective that I need to do what’s best for the client. We simply don’t have the human resources to handle this any more.”
The loss of the Nova Southeastern-based program means that all requests will now have to go through a sister project, the Florida Innocence Initiative office in Tallahassee. That program also faces problems. Several months ago, it was booted from its offices at Florida State University law school. Former FSU President Sandy D’Alemberte, who now teaches in the university’s law school and does pro bono work for the project, has donated space to the program in Tallahassee.
Jenny Greenberg, executive director of the Florida Innocence Initiative in Tallahassee, said she suspects her group was evicted from FSU “for political reasons.”
“We were perceived as anti-death penalty, which is not the case,” she said. “We’re not even representing anyone on death row. FSU law students had volunteered to the program to fulfill their 20 pro bono hours requirement.
FSU’s law dean, Donald Weidner, said that he didn’t know that the Innocence Project had left the campus and denied that politics played into his decision to end the pro bono arrangement with the project. He said his school was instead exploring an “externship” with the project.
“This is not political,” he said. “Clinical programs are very expensive. Almost all of our programs are externships.”
When asked if the Innocence Project cost the school anything, Weidner said no.
The Florida Innocence Project has handled hundreds of DNA testing requests from inmates. The project also lobbied legislators unsuccessfully during the recent legislative session to pass a measure extending the October 2005 deadline.
“I’m very disappointed about it,” D’Alemberte said. “I’m sad that they didn’t get around to extending the deadline, or funding the Innocence Project. Just $300,000 over five years would clear up all of these old cases.”
Asked about the DNA testing issue last week during an appearance in Miami, Raquel A. Rodriguez, Gov. Bush’s general counsel, said the governor “currently is considering what to do” about the looming testing deadline. Rodriguez downplayed the seriousness of the problem, saying there is “a finite group of [untested] defendants who were convicted many years ago. She added that “it would be nice if the Innocence Initiative got more people involved.”
The Innocence Initiative is considering asking the state Supreme Court to again extend the DNA deadline, Greenberg said. Last year, the court extended the deadline to 2005, consistent with what the Legislature ordered earlier that year. The justices also ordered law enforcement authorities not to destroy DNA evidence.
There are several reasons the Innocence Initiative will have difficulty making the Oct. 1 deadline for all the outstanding DNA testing requests. First, it has a backlog of about 500 cases and expects more inmates to come forward with requests for testing. In addition, the Florida Department of Law Enforcement DNA lab — the only state-run lab in the state — has a 12-month backlog. Greenberg said it’s more expensive to use private labs, and some judges won’t accept the results.
The Innocence Initiative is operating on a $30,000 grant from The Florida Bar Foundation, a $20,000 grant from The Florida Bar Flame Fund, and several other grants from private organizations, such as the Horace W. Goldsmith Foundation.
The Florida Association of Criminal Defense Lawyers recently agreed to help provide pro bono lawyers. Holland & Knight has 20 lawyers helping the program on a pro bono basis. Greenberg is hoping that another law school will step forward to house the program now at Nova.
“If you actually take on cases, that’s a major commitment of law school resources,” explained Stephen Schnably, associate dean of UM law school. “You need a lawyer to supervise cases and students. We have that, but not in [wrongful conviction] area.”
Torcino and Greenberg also have tried unsuccessfully to get the law schools at Stetson University in Gulfport and Florida A&M University in Tallahassee interested in taking over the program.
Julie Kay can be reached at jkay@floridabiz.com or at (954) 468-2622.
DNA samples photo by Ed Pfueller
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