Defense attorneys scramble as the end of a two-year period for retesting DNA in past convictions nears.
By CHRISTOPHER GOFFARD
Published September 2, 2003
TAMPA - Hector M. Irizarry is serving life in prison for the 1984 murder of his ex-wife, who was nearly decapitated in her Plant City home by a machete.
Dwight E. Anderson is serving a 27-year term for the 1992 slaying of a crack dealer who was gunned down with three slugs from a .25-caliber handgun in a Tampa apartment.
Todd Jenkins is doing life in the 1990 murder of a female neighbor who was found outside her Tampa apartment bleeding from 32 stab wounds.
These three inmates, convicted by Hillsborough juries, claim DNA evidence not introduced at their trials can help establish their innocence. The Tallahassee-based Innocence Project Florida has found prominent Tampa Bay defense lawyers to handle their cases free.
Irizarry, Anderson and Jenkins are among hundreds of Florida prisoners who are asking for postconviction DNA testing. Legal advocates say only a fraction of them will file their requests before Oct. 1, the end of a two-year window established by the Legislature in 2001 for testing DNA in old cases.
"There is no way, in my opinion, to put a deadline on innocence," said attorney Jennifer Greenberg, who in April started combing through Florida cases in a Tallahassee office for the Innocence Project, based at the Benjamin N. Cardozo School of Law in New York. She described the scramble to beat the deadline as a "massive crisis."
The Innocence Project Florida effort operates on a shoestring budget and relies heavily on the help of law students. A sympathetic Tallahassee lawyer lent them space to work. The office just got voice mail. They are looking for donors to pay for trial transcripts.
Of hundreds of Florida cases reviewed, Greenberg said, the Innocence Project has so far found at least 82 with claims that can be pursued. "We would like to proceed and file all 82 cases. We are not going to make it," she said. Even if they could, "that still leaves hundreds of people out in the cold."
"We have slightly over a month, and there are more than 400 cases to be gone through," said Milton Hirsch, a Miami attorney who helps find lawyers for inmates screened by the Innocence Project.
While Florida has seen celebrated instances of DNA clearing the wrongly convicted, such as the Broward County cases of Jerry Frank Townsend and Frank Lee Smith, Hirsch said he was not aware of the state's two-year window for DNA testing having led to further exonerations.
In fact, DNA retesting can have the opposite effect : The results can confirm an inmate's guilt.
While defense lawyers will ask the Florida Supreme Court to extend the Oct. 1 deadline, the Florida Prosecuting Attorneys Association says it will oppose the effort. "We were in favor of the deadline," said Buddy Jacobs, the association's general counsel. "It brings some finality to the cases - finality for the families and the victims."
Defense lawyers argue Florida prisoners, many of whom are functionally illiterate, are helpless without advocates. In many cases, prisoners fail to draft technically accurate motions for DNA testing. And investigating a case enough to win a hearing is "not something you can do from a prison cell," said Greenberg. "In fact, it's not something we can easily do."
Citing technical flaws in the request, a Hillsborough judge has denied Irizarry's motion for DNA testing. Irizarry, now 59, was convicted in 1985 of first-degree murder for the death of his ex-wife, Carmen Irizarry, and the attempted murder of her lover, Orlando Hernandez.
Hernandez saw a man fleeing with a machete. Irizarry matched the description of the attacker.
Irizarry had access to machetes because his job involved clearing brush. When deputies found him, they noticed blood on his face. Irizarry said he'd been fishing, that it was fish blood.
Using the science of the time, police analysts found some of the blood was human and some came from an unidentifiable species. Now Irizarry claims another test of the blood could establish his innocence.
Jenkins is now 39. In 1990, a jury convicted him of murder in the death of Jeannette Williams. A neighbor said he saw Jenkins standing over the body with a shiny object. Detectives found a bloody handprint on his jeans.
Jenkins says that an examination of blood and skin found under the victim's fingernails will point to someone else as the killer. He also argues that semen found in the victim, if tested, would link Williams' ex-boyfriend to the scene.
Anderson, now 45, is serving a 27-year sentence on a 1992 conviction for second-degree murder. Authorities said he bought crack cocaine from Michael Brooks, only to return and pump him full of bullets. A witness picked out his photo. Anderson is requesting that DNA evidence at the scene be compared against his own.
