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Another turf war appears to be shaping up between the Florida Supreme Court and the state Legislature as justices prepare to hear oral arguments next Tuesday on how DNA testing can be used to overturn criminal convictions. Like last year’s battle over the amount of time death row inmates should be given to appeal their convictions, this latest legal clash between the Republican-controlled Legislature and the courts has its roots in the high court’s concern about intrusion into its powers. The struggle lies in who should have the final say in how DNA testing can and should be used, by whom and whether there should be any limits on its use. While the Florida Legislature clearly has the authority to make law, the state supreme court has the authority to create the rules by which laws are implemented. The question now is whether the Legislature has overstepped its boundaries by including procedural guidelines in the law, which could result in a constitutional challenge much like the one launched last year over the death penalty. The need for DNA testing became clear last year after DNA tests exonerated death row inmate Frank Lee Smith, who was convicted in the 1985 rape and murder of 8-year-old Shandra Whitehead in Fort Lauderdale, Fla. However, in his case the discovery of new evidence came too late; Smith had died in prison 11 months earlier from cancer. DNA testing allows investigators to compare blood, semen, hair and other bodily fluids and tissue samples to determine with near certainty the person who committed a crime. More recently, Jerry Frank Townsend, a mentally disabled man, was released from prison after 22 years when newly unearthed DNA evidence cleared him of four murders. The evidence linked the murders to another man, Eddie Lee Mosley, who has been committed to a state psychiatric hospital for the last 13 years. In response to those cases, Florida legislators in May passed a law allowing inmates to seek DNA testing up to two years after they are convicted or after new testing procedures are developed. The law, which goes into effect Oct. 1, says DNA evidence can be used to exonerate or reduce the sentence of someone who is found guilty of a crime. It does not, however, allow someone who has pleaded guilty or no contest to request DNA testing. Passage of the law came on the heels of a separate set of rules created by the Florida Bar Criminal Procedure Rules Committee. On June 6, the committee brought the rules to the Florida Supreme Court for its blessing. The Bar’s proposal takes the newly passed law one step further by allowing someone who has pleaded guilty or no contest to petition for DNA testing, its argument being that under some circumstances even innocent people plead guilty. However, unlike the law, which imposes no time limits, the rule did not allow for the possibility that new methods of scientific testing might develop that could provide an inmate with enough reason to seek testing beyond a two-year limit. Faced with the possibility of confusion between the law and the rule, the Florida Supreme Court in June sent the Bar back to the drawing board to come up with a new rule using “the best parts of the statute” says Seminole Circuit Judge O.H. Eaton Jr., who chaired the rules committee. “There are some things about the legislation that are very good and there are some things about the legislation that should not be adopted,” Eaton told the court in June. He pointed to the provision in the legislation that allows only those found guilty to be granted the right to seek DNA testing as “an infringement on [the court's] responsibility for habeas corpus.” “Now that we have the technology to use DNA testing and to use it in a way that’s admissible in court, I think both the Legislature and the court want to make sure people are not in prison for things they did not do,” Eaton said in an interview last week. Although the goals of the Florida Legislature and the state supreme court appear to be the same — to defend the rights of potentially innocent people — the means by which those goals are achieved differ, and politics no doubt also have come in to play, says former Florida Supreme Court Justice Gerald Kogan, an outspoken critic of the death penalty. “The supreme court guards what they believe to be the right set of rules of procedure. They don’t like the Legislature trying to tell them what to do,” Kogan says. “I don’t think it’s a big deal, unless the Legislature wants another battle with the Florida Supreme Court.” But a battle is just what they may get if an Aug. 14 letter from Florida House Speaker Tom Feeney, R-Oviedo, to the court reflects how lawmakers feel. Feeney firmly believes justices should let the Legislature set state policy on DNA testing. “The belief that the Legislature does not have the authority to ‘limit’ the application of DNA testing is fundamentally flawed,” writes Feeney. He goes on to note that “the ability to reopen pleas, years later, on evidentiary issues, greatly compromises the interest in finality that is essential to the continued operation of our criminal justice system.” Feeney’s legislative aide, Kim Stone, said he was unavailable for comment. Feeney has been a staunch critic of the state supreme court. Last year, he chided justices for their “discomfort with the death penalty” and was instrumental in efforts to speed up death row inmate appeals by favoring the creation of time limits for the resolution of direct appeals and post-conviction petitions. Also of concern to the Legislature is the possibility that by extending the use of DNA testing to more inmates, it might open the floodgates to requests, resulting in increased demands on the Florida Department of Law Enforcement, which is not equipped to handle additional testing. “The Legislature exercised its prerogative to take a cautious approach in measuring the additional workload to be placed on FDLE as a result of authorizing DNA testing in limited circumstances,” writes Feeney, who goes on to note that the Legislature and not the state supreme court would be the one to authorize the funding needed to handle increased DNA testing. But those who represent inmates say there aren’t enough cases where DNA evidence might have a significant influence on an inmate’s case to cause concern. “DNA really applies to a small percentage of cases,” said Todd Scher, litigation director for the Capital Collateral Regional Counsel for the Southern District. CCRC, in a letter to the supreme court, instead is concerned with the fact that both the rule and the law “are silent” on whether the state can avail itself to post-conviction DNA testing and under what circumstances, and urged the court to consider this “anomaly” when it takes up the issue next week. The fact that the supreme court has decided to hear oral arguments on DNA testing a second time indicates the need for further discussion and debate, says Ray Rafool, current chairman of the rules committee. “We didn’t think they would ask for an oral argument,” Rafool said. “Obviously, there are questions that the supreme court still has. As learned as they are, that would seem to indicate they still see potential issues.”

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