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The state attorney’s office in Miami has launched a program to review all felony cases predating 1995 for DNA evidence that could exonerate defendants who are serving prison terms for rape, murder and robbery. Led by homicide prosecutor Michael Gilfarb, the office will review more than 500 cases in the next two years to make sure its prosecutors have put the right people behind bars, becoming the first state attorney’s office in Florida to create its own version of the Innocence Project, a New York-based legal clinic that reviews old cases to see whether DNA testing may exonerate inmates now doing time for crimes they did not commit. The Miami-Dade County state attorney’s office also plans to step up its efforts to collect DNA swabs from Miami-Dade felons to enter into Florida’s Combined DNA Index System, a statewide database with nearly 200,000 genetic profiles of those convicted of violent crimes. The office’s decision to initiate an in-house review is a process that evolved over a year, said Ed Griffith, spokesman for State Attorney Katherine Fernandez Rundle. She is facing what local political observers expect to be a rugged re-election campaign in November. But Rundle, who took office in 1993, is not worried that the review could expose possible mistakes made in the office during her 11-year tenure, Griffith said. “The motivating issue is the appropriateness of insuring there is no question about the guilt or innocence of any individual prosecuted in Miami,” Griffith said. “There isn’t a prosecutor in Florida who wouldn’t wish to correct a problem as quickly as possible.” The database, established in 1990 by the Florida Department of Law Enforcement, increasingly has become a powerful tool for investigators in cracking unsolved crimes. The Innocence Project, founded by prominent defense attorney Barry Scheck and Peter Neufeld in 1992, has gained notoriety in the past decade as more than 140 inmates have been exonerated nationwide based on post-conviction DNA testing. Of those exonerations, 25 have been in Florida cases. Just last week, the Legislature unanimously passed a bill to extend the deadline for filing post-conviction DNA motions to Oct. 1, 2005. Last fall, the Florida Supreme Court issued an emergency order indefinitely suspending the original Oct. 1, 2003, deadline. Since its inception, the Innocence Project has spread to law schools throughout the country and now has branches in almost every state. Staff and interns review hundreds of letters from inmates to determine whether DNA testing could prove their claims of innocence. But the concept has been slow to catch on with state prosecutors. Only top prosecutors in San Diego, St. Louis and Houston have taken the unusual step of undertaking their own reviews of old cases. One recent situation that spurred the review was the case of Richard McKinley, a Homestead, Fla., man who spent 20 years in prison for a rape he claims he did not commit. It was McKinley’s case that prompted Miami prosecutors to start working with the Innocence Project, rather than against it. “It just bugged me that another organization was doing what we should be doing,” said Gilfarb, an assistant state attorney in the office since 1992. “More than anybody, it’s a prosecutor’s job to make sure that justice is done and that the right person is in custody.” McKinley, 45, who was convicted in 1983 of raping an 11-year-old girl in an alley, filed a motion to vacate his conviction last July after a recent DNA test showed that semen samples recovered from the victim did not match his genetic material. When McKinley’s case went to trial in the early 1980s, DNA testing was limited to determining only whether the semen found in the victim matched the defendant’s blood type. Despite the new test results, prosecutors opposed McKinley’s motion to vacate his sentence last fall, claiming the test didn’t prove his innocence because of other facts in the case. Homestead police caught McKinley on top of the victim, with his pants down. When he tried to run, McKinley fell directly into the arms of a police officer. McKinley claimed that he was urinating in the alley when police grabbed him. He said he began to run because he had an outstanding warrant. Facing with the new test results, Miami-Dade prosecutors claimed that the semen found in the girl must have come from a boyfriend she claimed she had sex with the night before. According to the victim, the rapist never ejaculated, which would explain the absence of McKinley’s DNA, prosecutors said. In November, the state attorney’s office and McKinley’s attorney, Ivy Ginsberg of Miami, struck a deal that allowed McKinley to plead guilty to a lesser charge in return for his release. The Innocence Project served as Ginsberg’s co-counsel. Despite the disagreement between the state and defense, the experience prompted Gilfarb to initiate the internal review, a move that defense attorneys and Innocence Project staff are applauding. “I’m glad to see that they’re doing this,” Scheck said. “The McKinley case was a tough case for all concerned because of the conflicting stories. But now we’re starting to work with the Miami office on other cases of importance. It’s becoming a useful collaboration.” Ginsberg also commended the state attorney’s office, but expressed reservation about how prosecutors would react to cases that yielded negative test results. “It’s admirable that they’re reviewing the cases on their own initiative,” said Ginsberg, a solo practitioner. “Yet in a case where DNA evidence was brought to their attention before, they still contested the fact that it was relevant basis for a new trial.” Since last November, the state attorney’s office has created four DNA committees. Co-chaired by Gilfarb and a fellow division chief prosecutor, Brenda Mezick, the committees include the Justice Project, the DNA Compliance Task Force and the Science Law and Cold Case, Cold Hit committees. In the Justice Project, prosecutors will review every felony conviction in the county before 1995. Prior to 1995, forensic scientists needed a blood, semen or saliva sample the size of a quarter in order to do DNA testing. With advanced technology, scientists now need only 50 to 100 cells, a sample the size of a pinhead. The project will only review cases of those who are still in prison after being convicted at trial. They are also limited to cases in which the Miami-Dade County clerk’s office still has physical evidence that can be DNA tested. So far, Gilfarb has received a list of 800 cases for which the clerk’s office still has the evidence. He will cross-reference that list with one from the Department of Corrections of all Miami-Dade felons currently incarcerated for crimes predating 1995. From there, prosecutors will review the evidence sheets in each case on the revised list to determine whether it is something that can be tested for DNA, such as clothing, shoes, guns or knives. Then they will check with Innocence Project law school chapters at Florida State University and Nova Southeastern University to determine whether they are already working on the case. Next, they plan to send letters to each inmate, asking whether they are interested in having the evidence in their case tested for DNA. If so, the inmates must agree to submit to a DNA swab, which will be entered into the statewide database. From there, the cases will be divided among 150 prosecutors who will review the evidence at trial to categorize the case from 1 to 4 based on the weight that new DNA evidence would have in proving the defendant’s innocence. In a Category 1 case, the DNA test would exonerate the prisoner, such as in a case involving the sodomy of a 7-year-old boy for which there would be no other explanation for how semen got inside the victim. If the semen didn’t match the defendant’s DNA, the defendant would be innocent. In Category 2, the DNA result would not establish actual innocence, but could be a significant factor among the rest of the evidence, such as in the McKinley case. In Category 3, the DNA test would be irrelevant because a negative test would not exonerate the defendant of the crime, such as a case in which a defendant is charged with holding a victim down while another defendant raped her. Testing the DNA found in the victim would not prove the first defendant did not aid in the rape. Category 4 involves cases in which physical evidence that might contain DNA was never collected, was destroyed or was the type of evidence collected cannot be tested with present technology. A three-member committee comprising Gilfarb and two other department heads will review the prosecutor’s rating. Under program policy, the state attorney’s office will voluntarily test all Category 1 cases and some Category 2 cases, depending on the other evidence. It will not test Category 3 or 4 cases. The group of cases the state attorney’s office will choose for testing will probably be more narrow than those pursued by the Innocence Project, said Craig Trocino, co-director of the Innocence Project at Nova Southeastern University’s law school. In its screening of inmates, the Innocence Project follows parameters similar to those Gilfarb has established but does not have specific categories, Trocino said. In filing DNA post-conviction motions, defense counsel must include a statement explaining how the DNA testing will “exonerate the defendant of the crime” or “mitigate the sentence received for that crime.” To grant these motions, a judge must find that there was a reasonable probability that the defendant would have been acquitted or received a lesser sentence if the DNA evidence had been presented at trial. As in the McKinley case, that could be a matter of debate between prosecutors and Innocence Project staff. “I’m sure our opinions on what is worthy of DNA testing will vary,” Trocino said. “On the close cases, that’s where we come in.” The fact that the Miami prosecutor’s office is reviewing old cases will not preclude the Innocence Project from reviewing cases the state has rejected, although the two agencies will work to make sure they are not duplicating efforts. The prosecutor’s office is already reviewing nine cases referred by the Innocence Project, in addition to 47 cases in which defense attorneys have filed post-conviction DNA motions on behalf of their clients. Of those cases, the prosecutor’s office has agreed to testing in three cases and objected in 22 cases. The rest are still pending review. Of the three sent for testing, one result has shown as a positive match to the defendant in a rape case. Gilfarb is still awaiting the results of the other two. “This is not for the faint of heart,” he said. “I wasn’t sleeping when we sent that one case for testing. If it had come back negative, I would have meant I had a rapist out there and an innocent person in jail.” In addition to the Justice Project, the state attorney’s office is doubling its efforts to obtain DNA samples from every person convicted of certain crimes, including murder, sexual battery, burglary, carjacking, home invasion and robbery. Under Florida Statute 943.325, the state may collect DNA samples from certain felons to enter their genetic profiles into the statewide database. The law, established in 1990, allows the state to secure samples from certain felons, even from those who have already completed their sentences. In Miami-Dade, many felons were never swabbed for DNA as mandated by the statute because of an overload of cases and misunderstandings between agencies about who was taking the samples. In December, Gilfarb met with judges and other court administrators to establish a system in which a corrections officer would swab defendants who qualified for testing immediately after their sentencing in court. The swabs would then be sent to FDLE in Tallahassee, Fla. The new system went into effect at the beginning of January. Since then, Miami-Dade criminal judges have been reminded to make sure the DNA testing is done immediately. “The judges now have a sheet right on their desk of all the felonies that must have DNA swabs taken,” said Miami-Dade Circuit Judge Stanford Blake, administrative judge of the criminal division. Gilfarb has also filed motions for court orders to obtain DNA swabs from 352 felons convicted since 1990 who were never swabbed while they were in custody. Of those, police have already collected 145 outstanding samples in a series of neighborhood sweeps. During the sweeps, the police knock on the door, ask for the felon, take an oral swab and a fingerprint to verify the subject’s identify. Few of the former inmates or defendants have objected, Gilfarb said. Florida law is very clear that law enforcement agencies and prosecutors can take the samples once a person has been convicted of certain crimes, whether or not they are still in custody. If a defendant objects, he or she can be held in contempt of court. Under Florida law, the state also has the authority to use “reasonable force” to obtain a sample. Gilfarb is also working with probation officers to establish a system for swabbing nearly 1,600 felons who haven’t given samples. Prosecutors claim that beefing up its entries in the statewide database will help solve more crimes. “Studies have shown a high correlation between those who commit aggravated battery and burglary moving on to escalating crimes,” Gilfarb said. In other states such as Virginia and New York that have increases its efforts to enter DNA samples into the database, investigators are getting significant “hits” on previously unsolved rapes, murders, robberies and carjackings. Since 1990, Florida’s own database has provided investigators with 1,600 matches, according to FDLE statistics. “As our database entries increase, the number of hits are going to go through the roof,” Gilfarb said.

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