Florida Senate - 2010 SB 2538 By Senator Storms 10-00254-10 20102538__ 1 A bill to be entitled 2 An act relating to prejudice and improper bias in 3 criminal proceedings; creating the “Judicial Fair Play 4 Act”; requiring prosecutors to investigate all 5 evidence relating to defendants and provide 6 exculpatory evidence to the defense; providing that 7 the failure of a prosecutor to provide exculpatory 8 evidence to the defense is evidence of prejudice and 9 improper bias; authorizing investigations of 10 prosecutors and judges for prejudice and improper bias 11 upon the filing of an affidavit by a defendant which 12 satisfies certain criteria; providing for the 13 prosecution of prosecutors and judges for prejudice 14 and improper bias in a circuit designated by rule of 15 the Supreme Court; imposing criminal penalties; 16 amending s. 925.11, F.S.; authorizing postsentencing 17 DNA testing of certain persons convicted of a felony 18 if the results would have created a reasonable 19 probability of acquittal at trial; providing an 20 effective date. 21 22 WHEREAS, all people are entitled to equal justice under the 23 law, and 24 WHEREAS, human nature is flawed by the tendency of people 25 to knowingly or unknowingly succumb to bias, and 26 WHEREAS, it is often difficult to consider alternative 27 explanations of a criminal event once an initial hypothesis has 28 been formed, and 29 WHEREAS, blood evidence that was sufficient for conviction 30 may, with new DNA analysis, disprove the theory leading to 31 conviction, but not exonerate the convicted party, and 32 WHEREAS, it is necessary to minimize bias and prejudice in 33 criminal proceedings to ensure justice for all, NOW, THEREFORE, 34 35 Be It Enacted by the Legislature of the State of Florida: 36 37 Section 1. This act may be cited as the “Judicial Fair Play 38 Act.” 39 Section 2. Ethical responsibilities of prosecutors; 40 investigations of prejudice and improper bias.— 41 (1) It is as much the responsibility of the state attorney 42 to refrain from using improper methods that result in a wrongful 43 conviction as it is to use every legitimate measure to bring 44 about a just conviction. In carrying out these responsibilities, 45 the prosecutor shall investigate without prejudice all evidence 46 for and against a defendant. All exculpatory evidence must be 47 provided to the defense in a timely manner even if the 48 prosecutor believes it is not conclusive. The discovery of 49 exculpatory evidence after a trial which the prosecutor had in 50 his or her possession before the trial but failed to provide to 51 the defense is evidence of prejudice and improper bias. 52 (2) Whenever a defendant in a criminal proceeding makes and 53 files an affidavit stating that he or she did not receive a fair 54 trial because of prejudice or improper bias on the part of the 55 prosecutor or judge against the defendant or in favor of an 56 adverse party, the chief judge shall, upon a finding of probable 57 cause, appoint an investigator from another judicial circuit to 58 investigate the allegations. The affidavit must allege a 59 specific, verifiable act indicating the existence of prejudice 60 or improper bias against the defendant by the prosecutor or 61 judge in favor of a person whose interests are adverse to the 62 defendant. Upon a finding by the investigator that the 63 allegations have merit, the chief judge shall appoint a special 64 prosecutor from the same judicial circuit as the investigator to 65 prosecute the case in a court in a judicial circuit selected 66 under rules established by the Supreme Court. 67 (3) Any judicial officer or prosecutor who engages in 68 prejudicial acts, shows improper bias, or withholds exculpatory 69 evidence in a criminal proceeding commits a misdemeanor of the 70 first degree, punishable as provided in s. 775.082 or s. 71 775.083, Florida Statutes. 72 Section 3. Section 925.11, Florida Statutes, is amended to 73 read: 74 925.11 Postsentencing DNA testing.— 75 (1) PETITION FOR EXAMINATION.— 76 (a)1. A person who has been tried and found guilty of 77 committing a felony and has been sentenced by a court 78 established by the laws of this state may petition that court to 79 order the examination of physical evidence collected at the time 80 of the investigation of the crime for which he or she has been 81 sentenced whichthatmay contain DNA (deoxyribonucleic acid) and 82thatwould exonerate that person,ormitigate the sentence that 83 person received, or have created a reasonable probability of 84 acquittal if the results had been admitted at trial. 85 2. A person who has entered a plea of guilty or nolo 86 contendere to a felony prior to July 1, 2006, and has been 87 sentenced by a court established by the laws of this state may 88 petition that court to order the examination of physical 89 evidence collected at the time of the investigation of the crime 90 for which he or she has been sentenced that may contain DNA 91 (deoxyribonucleic acid) and that would exonerate that person. 92 (b) A petition for postsentencing DNA testing under 93 paragraph (a) may be filed or considered at any time following 94 the date that the judgment and sentence in the case becomes 95 final. 96 (2) METHOD FOR SEEKING POSTSENTENCING DNA TESTING.— 97 (a) The petition for postsentencing DNA testing must be 98 made under oath by the sentenced defendant and must include the 99 following: 100 1. A statement of the facts relied on in support of the 101 petition, including a description of the physical evidence 102 containing DNA to be tested and, if known, the present location 103 or the last known location of the evidence and how it was 104 originally obtained; 105 2. A statement that the evidence was not previously tested 106 for DNA or a statement that the results of any previous DNA 107 testing were inconclusive and that subsequent scientific 108 developments in DNA testing techniques would likely produce a 109 definitive result establishing that the petitioner is not the 110 person who committed the crime; 111 3. A statement that the sentenced defendant is innocent and 112 how the DNA testing requested by the petition will exonerate the 113 defendant of the crime for which the defendant was sentenced,or114 will mitigate the sentence received by the defendant for that 115 crime, or would have created a reasonable probability of 116 acquittal if the results had been admitted at trial; 117 4. A statement that identification of the defendant is a 118 genuinely disputed issue in the case, and why it is an issue; 119 5. Any other facts relevant to the petition; and 120 6. A certificate that a copy of the petition has been 121 served on the prosecuting authority. 122 (b) Upon receiving the petition, the clerk of the court 123 shall file it and deliver the court file to the assigned judge. 124 (c) The court shall review the petition and deny it if it 125 is insufficient. If the petition is sufficient, the prosecuting 126 authority shall be ordered to respond to the petition within 30 127 days. 128 (d) Upon receiving the response of the prosecuting 129 authority, the court shall review the response and enter an 130 order on the merits of the petition or set the petition for 131 hearing. 132 (e) Counsel may be appointed to assist the sentenced 133 defendant if the petition proceeds to a hearing and if the court 134 determines that the assistance of counsel is necessary and makes 135 the requisite finding of indigency. 136 (f) The court shall make the following findings when ruling 137 on the petition: 138 1. Whether the sentenced defendant has shown that the 139 physical evidence that may contain DNA still exists; 140 2. Whether the results of DNA testing of that physical 141 evidence would be admissible at trial and whether there exists 142 reliable proof to establish that the evidence has not been 143 materially altered and would be admissible at a future hearing; 144 and 145 3. Whether there is a reasonable probability that the 146 sentenced defendant would have been acquitted or would have 147 received a lesser sentence if the DNA evidence had been admitted 148 at trial. 149 (g) If the court orders DNA testing of the physical 150 evidence, the cost of such testing may be assessed against the 151 sentenced defendant unless he or she is indigent. If the 152 sentenced defendant is indigent, the state shall bear the cost 153 of the DNA testing ordered by the court. 154 (h) Any DNA testing ordered by the court shall be carried 155 out by the Department of Law Enforcement or its designee, as 156 provided in s. 943.3251. 157 (i) The results of the DNA testing ordered by the court 158 shall be provided to the court, the sentenced defendant, and the 159 prosecuting authority. 160 (3) RIGHT TO APPEAL; REHEARING.— 161 (a) An appeal from the court’s order on the petition for 162 postsentencing DNA testing may be taken by any adversely 163 affected party. 164 (b) An order denying relief shall include a statement that 165 the sentenced defendant has the right to appeal within 30 days 166 after the order denying relief is entered. 167 (c) The sentenced defendant may file a motion for rehearing 168 of any order denying relief within 15 days after service of the 169 order denying relief. The time for filing an appeal shall be 170 tolled until an order on the motion for rehearing has been 171 entered. 172 (d) The clerk of the court shall serve on all parties a 173 copy of any order rendered with a certificate of service, 174 including the date of service. 175 (4) PRESERVATION OF EVIDENCE.— 176 (a) Governmental entities that may be in possession of any 177 physical evidence in the case, including, but not limited to, 178 any investigating law enforcement agency, the clerk of the 179 court, the prosecuting authority, or the Department of Law 180 Enforcement shall maintain any physical evidence collected at 181 the time of the crime for which a postsentencing testing of DNA 182 may be requested. 183 (b) In a case in which the death penalty is imposed, the 184 evidence shall be maintained for 60 days after execution of the 185 sentence. In all other cases, a governmental entity may dispose 186 of the physical evidence if the term of the sentence imposed in 187 the case has expired and no other provision of law or rule 188 requires that the physical evidence be preserved or retained. 189 Section 4. This act shall take effect July 1, 2010.