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LIVE FROM THE HEADLINES

Florida Law Would Set Time Limit for DNA Testing

Aired August 29, 2003 - 19:23   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ANDERSON COOPER, CNN ANCHOR: Well, you've no doubt heard stories of prisoner whose convictions have been overturned because of DNA evidence. But what you might not know is that prosecutors throughout the country are arguing for limits on the use of DNA to reexamine cases.
In Florida, in fact, prisoners will be soon barred from using genetic testing on old cases. A law says October 1 is the deadline. And what is happening in Florida may soon happen in states across the country.

(BEGIN VIDEOTAPE)

COOPER (voice-over): It all began when DNA evidence was used to vindicate Gary Dotson in 1989. He'd been convicted of aggravated kidnapping and rape.

GARY DOTSON, FREED IN 1989: Still, the stigma remains that someone would have to deal with.

COOPER: To date, 136 prisoners have been freed because of DNA testing, including 12 on Death Row.

UNIDENTIFIED MALE: Lonnie C. Erby is innocent of the crime he's accused of.

COOPER: Just last Monday Lonnie Erby walked out of prison after 17 years. Genetic testing set him free.

But prosecutors all across the United States are arguing for time limits on reopening cases for DNA testing. They also say while DNA may prove incriminating evidence was invalid, it doesn't prove that a convicted prisoner did not commit a crime.

To this, defense attorneys say testing DNA evidence is essential. Not just because it helps free innocent people, but because it points to flaws in our justice system.

(END VIDEOTAPE)

Joining us to discuss this issue, two people with very different views. In Orlando, Randy Ball, a former legislator from Florida who is author of the legislation that is now about to shut the window on DNA testing. And with us in New York is Barry Scheck, an attorney who has used the evidence to set several prisoners free with his organization, The Innocence Project. Gentlemen, appreciate both of you joining us.

Barry, I want to start off with you. Opponents are basically saying, look, this is just going to flood the courts. You can't have just open-ended DNA testing for all prisoners out there who want it.

BARRY SCHECK, CRIMINAL DEFENSE ATTORNEY: Well, we have it in many states. We have it in New York, California, Illinois. And in New York we've had 14 DNA exonerations, 23 in Illinois, 13 now in Texas, where they have statutes.

But Florida has decided that they're going to put a two-year window of opportunity, which they previously had on new evidence of innocence motions. That's why we've only had two DNA exonerations in Florida and those happened by accident and they're very interesting cases.

Frank Lee Smith died on Death Row because we couldn't get him a DNA test because of the time bar. He was exonerated, you know, after he died.

Jerry Frank Sampson pled guilty to eight rape homicides that he didn't convict to avoid the death penalty, a mentally retarded man.

The same individual, Eddie Lee Moseley (ph) committed all those crimes, committed 16 murders and 60 rapes in Broward County, Fort Lauderdale area. We use testing to not only exonerate the innocent but to apprehend the people who committed the crime.

So it is absolutely outrageous on October 1 to flush all this evidence down the toilet before people can have an opportunity to prove their innocence and we can find the people who really committed the crimes.

COOPER: Randy, want to bring in you. Barry Scheck says it's outrageous. You say it's necessary. Why does this law have to take effect, in your opinion.

RANDY BALL, FORMER FLORIDA LEGISLATOR: Well, first of all, I don't think you understand the law. The law that I passed actually made it available for people to have DNA tested when their appeals had already run their course. So they actually opened up a window of opportunity.

Why should there be time limits? There should be time limits because you've got to finally bring closure to victims for the families of murder victims. Two years is a good amount of time to allow a person to bring -- to file the petition to have their DNA tested. So we're very much in favor of DNA testing.

SCHECK: Mr. Ball doesn't know anything that he's talking about. I've been doing this for ten years. I can tell you that in these cases which are 10, 15, 20 years old, it takes four years to be able to find the evidence. In many of these cases we can't find the transcripts.

COOPER: Two years is not enough?

SCHECK: Two years is ridiculous. It takes us, on the average at The Innocence Project, four years. Somebody is convicted 15, 20 years ago. We can't even find the transcripts. The lawyers don't have it. You have to find the evidence; you have to meet the strictures of the statute.

So Mr. Ball really doesn't know what he's talking about when he says two years are enough.

I am telling you, we've made every effort possible with absolutely no funds -- Florida provides no money for this -- to get these applications before the courts. And we have hundreds of letters that remain unread.

And these people are going to lose their opportunities. The evidence will be flushed down the toilet. The real perpetrators, who in many instances are serial rapists and serial murderers, will go free.

COOPER: Randy, do you have that concern? Do you share that concern that not only innocent people may be put to death in some cases or may be held for life sentences, but that the real culprits in some cases may still be out there?

BALL: Well, it's certainly a consideration but one thing that the good attorney doesn't realize is that the law says that the two- year window is not relevant, does not apply, when there is previously undiscovered evidence or evidence that is unknown that comes to light. And in that case...

SCHECK: Mr. Ball...

BALL: ... there is no time limit. I passed the law, so I know what I'm talking about.

SCHECK: I wrote the law, you put in the time limit. The fact of the matter is for everybody whose case was decided and they were convicted prior to the passage of this law, they had two years to make an application.

So if you were convicted in 1988, on October 1, if you haven't been able to file an application yet because your transcript couldn't be found or the evidence couldn't be found, isn't it true, Mr. Ball, you're out of court. The time limit would prevent you from having an application filed, and the state of Florida, most importantly, would be free to flush that crucial biological evidence down the toilet? Isn't that true?

BALL: That is absolutely false.

SCHECK: You don't know the law then.

BALL: There is untested DNA evidence, you can file your petition and then all the time delays do not matter because...

SCHECK: Mr. Ball, you don't even understand your own statute. The two-year time limit prevents...

BALL: The two-year limit is no longer pertaining. Once you get the petition in the time limit does not apply.

SCHECK: But you just said once you get the petition in, but if you don't have the ability to file the petition before October 1, then you're out of court and you're time barred. Isn't that right? Yes or no?

BALL: You've got the ability to file a petition if you believe that there is untested DNA evidence. That is a fact. Maybe you need to read your own bill.

SCHECK: No, no, no. Aren't you saying...

COOPER: Final thought.

SCHECK: If you don't answer this you're just lying to the public. On October 1 if you were convicted in 1988 you didn't file an application by October 1 of this year, then if you file it on October 2 you're time barred under your law, yes or no?

SCHECK: If you know that there is untested DNA evidence, you may file that petition. If you do not know and the time limit applies, but then you later discover the DNA evidence, the time limits do not apply.

COOPER: We're going to have to leave it there. I'm sorry.

Randy Ball, appreciate you joining us; and Barry Scheck, appreciate it, as well. Thank you.

SCHECK: Should know his own law.

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