MAY IT PLEASE THE COURT. MY NAME IS O.H. EATON JR.. I AM A CIRCUIT JUDGE IN THE EIGHTEENTH CIRCUIT, AND I AM A PAST-CHAIR OF THE CRIMINAL RULES COMMITTEE. THE PETITIONERS HAVE BEEN VERY -- HAVE WANTED TO TRY TO DIVIDE THEIR TIME UP PROPERLY, AND I AM GOING TO TAKE 13 MINUTES. I WOULD LIKE TO HAVE TEN MINUTES NOW AND THREE MINUTES FOR REBUTTAL, AND MY COLLEAGUES WILL HAVE THE OTHER FIVE MINUTES.

IT IS NECESSARY FOR EVERYONE TO KEEP THEIR OWN TIME. IT IS HARD FOR US TO DO THAT.

I UNDERSTAND. SOME MONTHS AGO, WHEN WE WERE HERE LAST, INVOLVING THIS RULE, THE COURT ASKED THE RULES COMMITTEE TO RETHINK THE PROPOSAL, IN LIGHT OF THE LEGISLATION THAT HAD BEEN PASSED AND SO THE FAST TRACK COMMITTEE OF THE RULES COMMITTEE WAS CONVENED, AND THIS PROPOSAL WAS MADE. THE -- FOR THE COURT'S INFORMATION, THERE WAS NOT ONE NEGATIVE VOTE FROM THE RULES COMMITTEE, CONCERNING THIS PROPOSED RULE. WHEN YOU COMPARE THIS PROPOSED RULE TO THE STATUTE THAT THE LEGISLATURE PASSED, THERE ARE TWO MAJOR DIFFERENCES. THE FIRST DIFFERENCE IS THAT THE RULE INCLUDES NOT ONLY PEOPLE WHO HAVE BEEN TRIED AND FOUND GUILTY BUT, ALSO, PEOPLE WHO HAVE ENTERED GUILTY PLEASE OR NOLO CONTENDERE PLEASE. SECOND, THE PROPOSED RULE ALLOWS THE TRIAL COURT TO AUTHORIZE TESTING TO BE DONE BY A LABORATORY OTHER THAN FDLE, UPON GOOD CAUSE SHOWN. NOW, AS WE ALL KNOW, THE RIGHT TO POSTCONVICTION RELIEF IS FOUNDED UPON THIS COURT'S CONSTITUTIONAL POWER TO ISSUE WRITS OF HABEAS CORPUS. THE LEGISLATURE HAS NO AUTHORITY TO CURTAIL OR EXPAND THAT GRANT OF POWER BY THE PEOPLE TO THIS COURT. IN FACT, IT HAS BEEN SAID, IN SOME OF YOUR OPINIONS, THAT ANY ATTEMPT TO DO SO WOULD BE IN EFFECTULE. I SUBMIT THAT THE CHANGES OUTLINED IN THE RULES THAT WE HAVE SUBMITTED DO NOT EXPAND THE REMEDIES THAT ARE ALLOWED BY THE WRIT OF HABEAS CORPUS BUT MERELY STATE THEM. IN OTHER WORDS THE PROPOSED RULE MERELY PROVIDES A UNIFORMED PROCEDURE TO PROCURE DNA TESTING UNDER THE AUTHORITY THAT THIS COURT ALREADY HAS, UNDER THE FLORIDA CONSTITUTION.

BUT DOESN'T IT EXPAND, AS FAR AS GUILTY PLEAS, OR ANY PLEAS, DOESN'T IT EXPAND THE TIME PERIOD THAT WE HAVE ALREADY RECOGNIZED FOR DNA TESTING, LIKE IN THE SERCY CASE OR WHATEVER IT IS, THAT WITHIN TWO DAYS THAT IT BECOMES KNOWN, ISN'T THAT WHAT IT IS?

THERE IS A TECHNICAL DIFFERENCE THERE, BUT THE RULES COMMITTEE BELIEVES THAT IT OUGHT TO BE UNIFORM FROM A CERTAIN DATE, SO THAT WE WOULD HAVE A TIME THAT EVERYBODY KNEW IT WAS STARTING AND EVERYBODY KNEW THAT IT WAS FINISHING. THE LEGISLATURE DID THE SAME THING, SO WE FOLLOWED THE LEGISLATIVE RECOMMENDATION. THE AMENDMENTS THAT I HAD SUGGESTED IN MY COMMENTS ARE FAIRLY MINOR, AND I WOULD LIKE TO GO OVER THEM WITH YOU, IF YOU DON'T MIND. FIRST, IN PARAGRAPH F OF THE PROPOSED RULE, WHICH IS THE LAST PARAGRAPH, I SUGGEST THAT WE OUGHT TO SUBSTITUTE THE WORDS "DATE THE ORDER ON THE MOTION IS RENDERED" FOR THE WORDS "ENTRY ON THE ORDER MOTION", AND THE REASON FOR THAT IS THE TERM "RENDERED" IS A TERM OF ART, IN APPELLATE PROCEDURE, AND A RULE DEFINED IN 9.020-B, AND IF YOU CHANGE IT FROM RENDERED TO "ENTERED", THEN I THINK IT WILL MAKE IT MORE CONSISTENT. SECONDLY, I SUGGEST THAT YOU ADD TO PARAGRAPH B-4, THE PHRASE "OR AN EXPLANATION OF HOW DNA EVIDENCE WOULD EITHER EXONERATE THE DEFENDANT OR REMOVE THE EVIDENCE RECEIVED", AND THAT WOULD MAKE THE RULE CONSISTENT WITH THE FIRST PARAGRAPH OF THE RULE, WHICH FOLLOWS THE STATUTE, BY THE WAY. A LOT OF PEOPLE HAVE FILED COMMENTS CONCERNING THIS RULE. SOME OF THEM ARE VERY MUCH IN FAVOR OF THIS RULE AND OTHERS HAVE BEEN CRITICAL OF IT. I DON'T HAVE ENOUGH TIME TO GO OVER ALL OF THEM, BUT I WOULD LIKE TO TALK A FEW MINUTES, ABOUT THE COMMENTS THAT WERE FILED BY THE SPEAKER OF THE HOUSE. I HAVE REVIEWED HIS COMMENTS VERY CAREFUL HADFULLY, AND AT FIRST IT GAVE ME GREAT PAUSE, BECAUSE I WANTED TO MAKE SURE THAT WHAT THE RULES COMMITTEE HAD DONE WAS AN APPROPRIATE PROCESS, AND DESPITE PROTESTATIONS TO THE CONTRARY, I AM CONVINCED THAT MOST OF THIS RULE IS PROCEDURAL OR MOST OF THIS STATUTE IS PROCEDURAL INNATE AND NOT SUBSTANTIVE. THE SUBSTANTIVE PORTIONS OF IT ARE GOOD, BECAUSE, ONE, IT REQUIRES FDLE TO PERFORM THE TESTS, WHICH MEANS THAT THE STATE GOVERNMENT WILL PICK UP THE COST OF IT, AND SECOND, IT REQUIRES THE LAW ENFORCEMENT AGENCIES AND OTHER AGENCIES TO MAINTAIN THE EVIDENCE, WHICH IS SOMETHING THAT I REQUESTED THE SENATE TO DO. AND SO I AM VERY PLEASED WITH THE SUBSTANTIVE PORTIONS OF THE RULE, BUT I WANT TO TALK TO YOU ABOUT FOUR PROBLEMS THAT I PERCEIVE. FIRST IS THE FDLE PROBLEM. FDLE, I UNDERSTAND, WENT BEFORE THE SENATE COMMITTEE AND SAID THAT THEY DIDN'T WANT TO HAVE INCLUDED PEOPLE WHO WERE FOUND, WHO PLED GUILTY OR PLED NOLO CONTENDERE, BECAUSE THEY WERE WORRIED ABOUT THE FLOOD GATES BEING OPENED AND ALL OF THESE DIFFERENT DNA TESTING PROCEDURES HAVING TO BE DONE BY THEIR DEPARTMENT AND NOBODY COULD TELL HOW MANY THERE WERE GOING TO BE. THAT SOUTHBOUND ONE OF THE REASONS THAT THE RULES COMMITTEE SUGGESTED THAT, ON GOOD CAUSE SHOWN, YOU MIGHT BE ABLE TO ORDER ANOTHER AGENCY TO DO THAT, IF FDLE IS OVERLOADED, IF FDLE, FOR SOME REASON, BECOMES A PROBLEM WITH CREDIBILITY, LIKE THE FBI LAB WAS, FOR INSTANCE, OR WHAT IF YOU HAVE A DEFENDANT WHO IS NOT INDIGENT?

BUT ISN'T THAT A LEGISLATIVE CAUSE THAT WILL HAVE A FISCAL IMPACT THERE, AND CAN'T THE LEGISLATURE MAKE THAT DECISION, THAT IT WILL ONLY BE CONVICTIONS AND SENTENCES, NOT PEOPLE THAT HAVE PLED NOLO. ISN'T THAT, REALLY, TIED UP WITH MUST NOT THAT I THE LEGISLATURE WOULD HAVE TO SPEND TO OPEN AND ENLARGE THE POOL?

YES. LET ME EXPLAIN MY SPIN ON THAT, BECAUSE I THOUGHT ABOUT THIS AT LENGTH, AND IT WAS OF CONCERN TO ME, BECAUSE IT WAS OF CONCERN TO THE SPEAKER, BUT YOU SEE, THERE IS A STATUTE ALREADY IN FORCE, IN CHAPTER 939, THAT REQUIRES COSTS THAT ARE NOT PAID BY THE STATE TO BE PAID BY THE COUNTIES AND SO IF, FOR INSTANCE, A JUDGE ORDERS DNA TESTING TO BE DONE BY A LABORATORY OTHER THAN FDLE, THEN, IF THE STATE IS NOT GOING TO PICK UP THAT COST, BECAUSE OF THE STATUTE, THEN THE COUNTY WOULD BE RESPONSIBLE TO PAY IT OUT, SO I DON'T THINK IT IS A SUBSTANCE ISSUE. IT IS A "WHO PAYS THE MONEY" ISSUE, AND I THINK THERE IS ALREADY A PROVISION FOR IT. THE SECOND THING IS THE RIGHT TO APPEAL PROBLEM. THE SPEAKER, IN HIS COMMENTS, WAS CONCERNED, BECAUSE HE OPINED THAT, THAT BECAUSE THE STATUTE ONLY ALLOWS PEOPLE WHO HAVE BEEN TRIED AND FOUND GUILTY TO APPEAL THEN THAT WOULD LIMIT THE RIGHT OF APPEAL, BUT THERE IS ANOTHER STATUTE, 924.066, THAT PROVIDES FOR THE RIGHT TO APPEAL IN EVERY POSTCONVICTION CASE, SO I THINK THAT THE APPEAL RIGHT PROVISION OF THE STATUTE IS JUST REDUNDANT AND PROBABLY IS NARROWER THAN THE OTHER STATUTE. NEXT THERE, IS THE APPOINTMENT OF COUNSEL PROBLEM. AND THE SPEAKER WAS CONCERNED ABOUT THAT, BECAUSE HE DIDN'T WANT TO HAVE THE STATE TO PAY THE COSTS OF COUNSEL FOR PEOPLE WHO HAD PLED GUILTY OR HAD ENTERED NOLO CONTENDERE PLEAS, AND IN FACT THE STATUTE AUTHORIZES THE APPOINTMENT OF COUNSEL FOR THOSE PEOPLE, THE PEOPLE THAT WERE TRIED AND FOUND GUILTY. BUT, AGAIN, THE COURTS IN THIS STATE HAVE APPROVED THE APPOINTMENT OF COUNSEL IN POSTCONVICTION CASES, WHERE THERE IS NO RIGHT TO APPEAL, UNDER CIRCUMSTANCES WHEN, ONE, YOU HAVE A COMPLEX ISSUE OR, TWO YOU HAVE THE NEED FOR LEGAL RESEARCH AND THE KIND OF SKILL THAT A LAWYER HAS TO HAVE, IN ORDER TO PROPERLY PROCESS THE POSTCONVICTION PROBLEM, SO I THINK THE AUTHORITY IS ALREADY THERE. AND WHETHER OR NOT THE STATE WILL PICK UP THE COST --

BUT YOU WOULD AGREE THAT THIS IS AN EXPANSION OF THE STATUTORY RIGHT TO COUNSEL OR A RIGHT TO COUNSEL WHICH IS NOT SET OUT IN THE STATUTE, A NONSTATUTORY RIGHT TO COUNSEL.

RIGHT. YES, SIR. YES, SIR. BUT MY POINT IS I THINK IT IS ALREADY THERE. IT MIGHT --

IF IT IS ALREADY THERE, THEN WHY DO WE NEED TO INCLUDE IT IN THE RULE?

WE INCLUDED IT IN THE RULE, BECAUSE THE LEGISLATION INCLUDED IT IN THE STATUTE. BUT THE POINT IS THAT --

IT DID NOT INCLUDE IT IN THE STATUTE FOR THIS PARTICULAR CLASS OF --

RIGHT.

-- DEFENDANT.

I THINK ALL IT COMES DOWN TO IS WHO PAYS THE COST.

ISN'T THERE A BRIDGE THAT WE OUGHT TO BE CROSSING IN RULE-MAKING, THOUGH, OR SHOULD WE BE WAITING ON A CASE TO COME? WE SHOULDN'T BE TRYING TO RESOLVE CONSTITUTIONAL ISSUES IN RULE-MAKING, SO ARE WE BEING PRECIPITOUS IN CROSSING THIS BRIDGE IN RULE-MAKING, OR SHOULD WE WAIT FOR A TRUE CASE IN CONTROVERSY TO RESOLVE THAT?

I GUESS THAT IS THE COURT'S CALL, BUT THE RULES COMMITTEE FELT LIKE, IF WE COULD PLUG UP AS MANY HOLES AS WE COULD, AND ANTICIPATE PROBLEMS, THAT IT WOULD MAKE SENSE. MR. CHIEF JUSTICE: JUDGE EAT ONE I THINK YOUR TEN MINUTES --

THANK YOU VERY MUCH. MR. CHIEF JUSTICE: THANK YOU. JUDGE SHARP.

MAY IT PLEASE THE COURT JUSTICES AND CHIEF JUSTICES. I AM JUST HERE TO REPRESENT THE APPELLATE RULES COMMITTEE, BECAUSE I AM THE CHAIR THIS YEAR AND WE WERE ASKED TO COME UP WITH A RULE THAT WOULD HANDLE THE APPEALS FROM THIS PARTICULAR RULE, WHICH IS UNDER CONSIDERATION BY THIS COURT, AND TO WIT, WE HAVE FILED AN EMERGENCY PETITION TO REVISE RULE 9.140 AND 9.141, AND THE THEORY OF THE COMMITTEE WAS THESE APPEALS SHOULD BE HANDLED VERY SIMILAR TO THE ONES, APPEALS FROM THE 3.850 CASES AND THE 3.800 CASES, SO WHAT WE HAVE DONE IS TACK THESE ON TO THE THINGS WITHOUT CHANGING THE SUBSTANCE OF EITHER ONE OF THESE RULES. THERE ARE A COUPLE OF CAVEATS, THOUGH, I WOULD LIKE TO CALL TO THE COURT'S ATTENTION. THERE MAY BE UNEXPECTED PROBLEMS HANDLING APPEALS FROM THE STATUTE OR FROM THIS NEW RULE, IN WHICH CASE WE REALLY DON'T HAVE TIME TO FORESEE THAT, SO WHAT WE WANTED TO DO IS TO HAVE SOME TIME WHEN THESE PROBLEMS ARE A RISE, THEN WE WILL -- THESE PROBLEMS A RISE, THEN WE WILL ADDRESS THEM, BUT IT IS REALLY A CRYSTAL BALL. WE DON'T KNOW HOW THESE CASES ARE GOING TO BE HANDLED IN THE LONG-RUN. ALSO WE DIDN'T DEAL WITH THE DEATH CASES. I THINK THIS COURT HAS GOT RULES THAT DEAL WITH HANDLING APPEALS IN THIS CONTEXT, AND 9.141 HAS NEVER HANDLED, HAS NEVER BEEN INTENDED OR DIRECTED TOWARDS DEATH CASES, SO THE COURT MAY NEED TO CONSIDER THAT ON YOUR OWN. THE OTHER POINT WAS THAT, IF YOU DON'T PASS RULE 3.853, THEN PLEASE DON'T PASS OUR RULE. THANK YOU. MR. CHIEF JUSTICE: THANK YOU, JUDGE SHARP. MR. WELLS.

MAY IT PLEASE THE COURT. I AM ROBERT WILLS, ASSISTANT PUBLIC DEFENDER DOWN IN THE 17th CIRCUIT AND ALSO THE CHAIR OF THE CRIMINAL RULES COMMITTEE. I AM ALSO HERE REPRESENTING THE CRIMINAL RULES COMMITTEE, AND MY TIME IS SET FOR THE PURPOSE TO EXPLAIN TO YOU A COUPLE OF ISSUES AS TO WHY THE RULES COMMITTEE PROPOSED WHAT IT DID, AND I WANT TO DEAL WITH THE ISSUE OF INCLUDING GUILTY PLEASE AND SECONDLY WHY WE PUT IN THE INDEPENDENT LAB SECTION, WHEN WE PROPOSED THE AMENDED RULE. THE CRIMINAL PROCEDURE RULES COMMITTEE STARTED ADDRESSING THIS ISSUE ABOUT A YEAR AGO. OUR WHOLE PURPOSE, FROM THE BEGINNING, WAS TO PROVIDE A VEHICLE WHEREBY INNOCENT PEEP THAERL IN THE JAILS OF THIS -- PEOPLE THAT ARE IN THE JAILS OF THIS STATE COULD UTILIZE SCIENTIFIC ADVANCEMENTS TO BE RELEASED FROM CUSTODY.

WITHOUT GETTING INTO ALL THE DETAILS, YOU, AS AN ASSISTANT PUBLIC DEFENDER, KNOWING THE LAW KNOWING THE RULES AS THEY EXISTED, WAS THERE ANY PROHIBITION THAT, IF SOMEONE CAME TO A LAWYER AND SAID I AM INNOCENT, AND IF THE NEW TEST IN USING THE PRESENT RULE, IN ORDER TO FILE A POSTCONVICTION MOTION?

THE PROBLEM IS THAT THE EVIDENCE, IN MOST CASES, IS UNDER THE JURISDICTION OF THE CLERK OF THE COURT OR THE LAW ENFORCEMENT AGENCY, AND THERE HAD TO BE SOME VEHICLE FOR US TO ACCESS IT FOR TESTING. I HAVE GOT ONE CASE RIGHT NOW IN BROWARD COUNTY THAT WE ARE WAITING ON, FOR THE RESOLUTION OF THIS MATTER, TO DECIDE HOW TO PROCEED, BUT WE DID GET THE PROSECUTOR TO AGREE TO ALLOW THE TEST TO GO FORWARD IN THE LAST COUPLE OF WEEKS. WE HAVE A SHERIFF IN BROWARD COUNTY, WHO HAD DONE IT ON HIS OWN, TO OPEN UP THESE CASES. MY POINT IS, UNLESS IT IS DONE VOLUNTARILY OR BY STIPULATION WITH THE STATE, THIS THERE IS NOT A VEHICLE TO GET THE EVIDENCE TO HAVE THE TEST DONE.

BUT IF THE LEGISLATURE HADN'T PASSED THIS STATUTE, HOW WOULD THE COURTS, THEN, HAVE THE AUTHORITY TO TELL THE SHERIFF OR TO TELL FDLE OR WHATEVER HOW TO PRESERVE THE EVIDENCE? NOW WE GET BACK TO ISN'T THAT A SUBSTANTIVE --

WELL, THE PRESERVATION OF EVIDENCE ISSUE IS A SEPARATE ISSUE. OUR CONCERN WAS THAT EVIDENCE IS MAINTAINED IN THE FILES AND IN THE EVIDENCE LOCKERS OF THE CLERKS OF THE COURT, WITHIN THIS STATE, AND ALSO IN LAW ENFORCEMENT AGENCIES, AND WE WANTED TO HAVE A VEHICLE, WHERE WE COULD GO AND GET THE TEST DONE, AND THAT WAS THE PURPOSE OF THE RULE WAS TO GO AND HAVE THE TEST CONDUCTED. DEPENDING UPON THE RESULTS, THEN WE WOULD PROCEED WITH FURTHER RELIEF. AND IT WAS OUR INTENT, FROM THE BEGINNING, TO INCLUDE PLEASE OR TRIES -- PLEAS OR TRIALS, ANY CASES WHERE SOMEONE MIGHT BE INNOCENT AND SCIENCE COULD GO AND CAUSE THEM TO BE RELEASED. THE STATE HAS NO INTEREST IN HAVING INNOCENT PEOPLE IN JAIL. NOW, THE RELIEF, UNDER THE PROPOSED RULE, AS I INDICATED, IS ONLY FOR THE PURPOSE OF GETTING THE TEST. WE RECOGNIZED, AS FAR AS PLEAS, AND OUR FULL COMMITTEE RECOGNIZED, THAT PEOPLE DO ENTER PLEAS OF GUILTY, EVEN THOUGH THEY ARE INNOCENT, MENTALLY-ILL, MENTALLY-RETARDED. THE TOWNSEND CASE, OUT OF MY OWN CIRCUIT, IS AN EXAMPLE OF A DEATH CASE, WHERE A PLEA OF GUILTY WAS ENTERED, AND THE DNA EVIDENCE HAS RESULTED IN THE CONVICTION BEING VACATED. BEST INTEREST PLEAS ARE ENTERED BY DEFENDANTS IN THIS STATE, AND ALSO, THESE KINDS OF CASES, VERY OFTEN, ARE SOME OF THE MOST TRAUMATIC CASES TO TRY, AND IF YOU LIMIT THIS PARTICULAR REMEDY ONLY TO CASES WHERE A TRIAL HAS OCCURRED, THAT COULD HAVE AN INHIBITING IMPACT UPON FUTURE PLEA NEGOTIATIONS. WHAT WOULD I ADVISE MY CLIENT IN THE FUTURE? I HAD BETTER GO TO TRIAL, BECAUSE IF SCIENCE COMES ALONG WITH A REMEDY, I WOULD NOT BE ABLE TO MAKE USE OF IT.

BUT I ASK YOU THE SAME QUESTION. CAN THE COURT EXPAND THAT POOL THAT HAS BEEN DESIGNATED BY THE LEGISLATURE AS THE POOL TO BE INCLUDED UNDER THE LEGISLATION? CAN WE, BY RULE, EXPAND THE POOL?

THE POSITION OF THE RULES COMMITTEE, FROM THE BEGINNING, WAS THAT, UNDER THE HABEAS CORPUS POWERS OF THIS COURT, THAT THIS COURT COULD ADDRESS THIS ISSUE, AND THAT BASICALLY THE RULE THAT A WOULD BE ADOPTED WOULD -- THAT WOULD BE ADOPTED WOULD BE STATING THE HABEAS POWERS OF THIS COURT. THERE WAS NO LEGISLATION, WHEN WE FIRST STARTED IN THIS PARTICULAR MATTER. WE WERE PLEASED TO HAVE THE BENEFIT OF THE LEGISLATURE, AND WE WENT BACK, AND WE TOOK THE STATUTE, AS THE STARTING POINT, BUT WE FUNDAMENTALLY BELIEVED THAT ALL OF THESE CASES SHOULD BE INCLUDED. ON THE INDEPENDENT LAB ISSUE --. MR. CHIEF JUSTICE: MR. WELLS, YOUR TIME IS UP.

THANK YOU VERY MUCH. MR. CHIEF JUSTICE: THANK YOU VERY MUCH. MR. KAUFMAN.

MAY IT PLEASE THE COURT. CHET KAUFMAN FOR THE FLORIDA PUBLIC DEFENDER ASSOCIATION. ON BEHALF OF MYSELF AND TODD SCHER FOR THE CCRCs'S, WE WOULD LIKE TO CEDE OUR TIME TO MR. BARRY SCHECK OF "THE INNOCENCE PROJECT", BECAUSE WE FEEL HE WOULD BE BETTER PREPARED TO ADDRESS YOUR QUESTIONS THIS MORNING. MR. CHIEF JUSTICE: MR. SCHECK, WE WILL GIVE YOU NINE MINUTES. THANK YOU.

THANK YOU. MAY IT PLEASE THE COURT. THERE HAVE BEEN 94 POSTCONVICTION DNA EXONERATIONS IN THE UNITED STATES, INCLUDING 11 PEOPLE WHO HAVE BEEN SENTENCED TO DEATH OR ON DEATH ROW AND ONLY TWO IN FLORIDA, FRANK SMITH AND JERRY TOWNSEND. WE HAD THE PRIVILEGE OF WORKING ON BOTH CASES, BUT GIVEN THE WAY THE PROPOSED RULE IS STRUCTURED, NEITHER OF THESE INDIVIDUALS WOULD HAVE HAD AN OPPORTUNITY TO GET RELIEF, BECAUSE OF THE TWO-YEAR TIME LIMIT, AND CERTAINLY MR. TOWNSEND, A MAN WITH AN IQ OF 50, MENTALLY MENTALLY-RETARDED, WOULD NOT, BECAUSE OF THE GUILTY PLEA PROVISION, UNLESS THE GUILTY PLEA PROVISION IS ADOPTED, HAVE AN OPPORTUNITY TO GET THE DNA TEST. I SHOULD SAY IT IS NOT UNUSUAL FOR GUILTY PLEAS. THERE IS ALSO A MAN GUILTY LIKE MR. TOWNSEND THAT DNA EVIDENCE EXONERATED HIM AND A MAN IN TEXAS PLED GUILTY AND WAS ULTIMATELY EXONERATED WITH DNA. HE WAS A VERY SMART INDIVIDUAL. HE JUST FEARED EXECUTION AFTER BEING COERCED INTO A FALSE CONFESSION, SO TAKE HAPPENS, AND IT IS -- SO THAT HAPPENS, AND IT IS SOMETHING THAT YOU SHOULD BE AWARE OF. WHAT I WOULD LIKE TO, FIRST, DO IS ADDRESS THE TWO-YEAR ISSUE OF THE TIME LIMIT, AND SECONDLY --

WHERE ARE THE OTHER STATES ON WHICH YOU WORK ON THAT VERY ISSUE, ON THE ISSUE OF WHETHER THERE ARE IMPOSED TIME LIMITS AND WHATEVER RULES THAT THEY HAVE ADOPTED, SINCE THE ADVENT OF THE DNA?

WELL, THE NATIONAL COMMISSION ON THE FUTURE OF DNA TESTING, AND I SUBMITTED A COPY OF OUR 200-PAGE REPORT, WHICH WAS A JUSTICE DEPARTMENT GROUP FILLED ONLY WITH LAW ENFORCEMENT, WE DID A 200-PAGE STUDY OF THIS, LOOKING ALL ACROSS THE COUNTRY, PROPOSED A MODEL RULE. I BELIEVE, NOW, THERE ARE 22 STATES THAT HAVE ADOPTED POST POST-CONVICTION DNA STATUTE, AND 16 OF THEM HAVE NO TIME LIMITS WHATSOEVER, CONSISTENT WITH THE MODEL THAT WE PROPOSED, AND THE REASON, ON THE ISSUE OF TIME LIMITS, WE HAVE DONE MOST OF THE POSTCONVICTION DNA TESTS IN THE UNITED STATES. WE HAVE HAD NINE YEARS OF EXPERIENCE. I AM TELLING YOU, BY THE TIME SOMEBODY TRIES TO FIND A TRANSCRIPT, THE POLICE REPORTS, THE LAB REPORTS, TO MAKE AN APPLICATION UNDER THE STATUTE, TO SHOW THAT A DNA TEST WOULD RAISE A REASONABLE PROBABILITY THEY WERE WRONGLY CONVICTED OR SENTENCED, CERTAINLY TWO YEARS HAVE PASSED. THE AVERAGE TIME PERIOD IN OUR CASES APPROACHES THREE-TO-FOUR YEARS FOR US TO GET AN APPLICATION OUT, AND HERE YOU ARE FACING A CLASS OF CASES WHERE THERE IS NO RIGHT TO HAVE A COUNSEL POST-CONVICTION, IN THE STATE OF FLORIDA, EXCEPT FOR SOMEBODY THAT IS ON DEATH ROW, SO NONE OF THESE PEOPLE HAVE LAWYERS.

BUT YOU HAVE THE VERY PRACTICAL ASPECT OF THIS MATTER, WHICH UNFORTUNATELY WE DO HAVE LIMITED RESOURCES, AND IN A SITUATION IN WHICH OPENING CASES UP THAT ARE 40 YEARS, 30 YEARS, 25 YEARS OLD, SO THAT ALL OF THESE CASES CAN BE SENT BACK THROUGH THE PROCESS, PRESENTS AN ENORMOUS PROBLEM.

THERE IS THE FLOOD GATES ISSUE IS A PHONY ONE. MR. CHIEF JUSTICE: WHY IS THAT?

WE HAD POSTCONVICTION DNA STATUTES IN NEW YORK AND ILLINOIS FOR THE LAST SIX YEARS. IN NEW YORK THERE HAVEN'T BEEN MORE THAN 100 APPLICATIONS SINCE DEALING WITH THE STATUTE. YOU ARE TALKING ABOUT A NARROW CLASS OF INDIVIDUALS HERE. PEOPLE THAT DIDN'T HAVE DNA TESTS AND LOOKING BACK TO PEOPLE, MAYBE, FINDING CASES FROM THE '80s THROUGH THE EARLY '90s, WHERE THERE IS NOW TECHNOLOGY THAT CAN HELP THEM, BUT THEY DIDN'T HAVE IT AT THE TIME THAT THEY DID THE TEST, SO IT IS A COMPARATIVELY SMALL CLASS OF PEOPLE THAT CAN EVEN MAKE A CLAIM, THAT WOULD FIT UNDER THE STATUTE, THAT CAN POINT OUT HERE IS SOME BIOLOGICAL EVIDENCE THAT WE CAN TEST THAT WOULD MAKE A DIFFERENCE.

HOW MANY STATES HAS THE COURT EXPANDED A STATUTE.

WHAT IS PECULIAR IS --

BY RULES?

VERY FEW STATES HAVE THIS KIND OF PROCESS. MOST STATES, WHEN THEY HAVE PASSED A STATUTE, HAVE NO TIME LIMIT, 16 OUT OF THE 22 THAT HAVE RECENTLY PASSED IT. IN SITUATIONS WHERE I AM NOT THE FLORIDA LAWYER, BUT I BELIEVE YOU DO HAVE, LOOKING AT BUTTERWORTH AND THE OTHER DECISIONS, THE POWER TO SAY THAT A TWO-YEAR TIME LIMIT SHOULDN'T APPLY, THAT IT CAN BE AT ANY TIME IT COULD PROVE INNOCENCE. WHAT I AM HERE TO TELL YOU --

ON WHAT BASIS?

BECAUSE IT IS PROCEDURAL TIME LIMIT PURELY, AND I WOULD ALSO ARGUE TO YOU THAT THERE IS AN UNDERLYING CONSTITUTIONAL ISSUE HERE THAT I WOULD HOPE, IN A COMMENTARY TO THE RULES, THE COURT WOULD ADDRESS, AND THAT IS WHAT WE ADDRESSED IN OUR BRIEF. WE HAVE BEEN GOING ACROSS THE UNITED STATES NOW, IN SITUATIONS WHERE LET'S SAY THE TWO YEARS HAS RUN. LET'S SAY IT IS FRANK LEE SMITH ON DEATH ROW. THERE ARE VAGINAL SWABS HE WANTS TO TEST. THERE HAS BEEN A RULING THAT, SOMEHOW WITH DUE DILIGENCE, HE COULD HAVE KNOWN THAT THIS WAS SOMETHING HE COULD HAVE TESTED, RIGHT, WITHIN, AND HE IS NOW ABOUT TO BE EXECUTED, BUT HERE IS A DNA TEST THAT COULD PROVE HIM INNOCENT. WE HAVE BEEN GOING TO COURT, BECAUSE WE BELIEVE THAT THERE IS A DUE PROCESS EIGHTH AMENDMENT RIGHT OF ACCESS TO THE EVIDENCE, IN OTHER WORDS, THIS STATUTORY SCHEME SHOULD NOT BAR SOMEONE WHO IS WILLING TO PAY FOR THE TEST. WE WERE WILLING TO PAY FOR FRANK LEE SMITH'S TEST, BUT THE COURT SAID OH, NO, YOU CAN'T GET ACCESS TO THE EVIDENCE, BECAUSE THERE IS A TWO-YEAR TIME LIMIT ON NEWLY-DISORDER EVIDENCE. WE SHOULD HAVE -- ON NEWLY-DISCOVERED EVIDENCE. WE SHOULD HAVE A RIGHT OF ACCESS NOTWITHSTANDING ANY TIME PERIOD THAT IS IMPOSED BY THE RULES OF THE LEGISLATURE. YOU SHOULDN'T BE CUTOFF FROM YOUR OPPORTUNITY TO GET THE DNA TEST, CERTAINLY IF YOU ARE WILLING TO PAY FOR IT, IF IT COULD PROVE YOUR INNOCENCE, IF ONLY TO PRESENT AN APPLICATION FOR EXECUTIVE CLEMENCY TO THE GOVERNOR, AND WE WOULD EVEN ARGUE THAT, IN A CASE LIKE SMITH WHERE THE DNA WOULD SHE THAT HE WAS ACTUAL -- WOULD SHOW THAT HE WAS ACTUALLY INNOCENT THAT, THERE IS A CONSTITUTIONAL CLAIM IN FRONT OF THIS COURT.

SHOULDN'T THESE CASES BE FLUSHED OUT IN CONTROVERSY, INSTEAD OF TRYING TO RECOMMEND DITHEM PRECIPITOUSLY IN A RULE?

I DON'T THINK IT WOULD -- TO -- TRYING TO LIMIT THEM PRECIPITOUSLY TO THE RULE?

I DON'T THINK IT WOULD BE PRECIPITOUS TO HAVE A RIGHT OF ACCESS TO PROVE INNOCENCE. IF YOU WAIT, IN THE COURTS EVERYDAY, EVIDENCE IS DISAPPEARING. WE FIND, IN 80 PERCENT OF OUR CASES, EVIDENCE IS EITHER LOST OR DESTROYED. YOU ONLY HAVE A TWO-YEAR STATUTE OF INNOCENCE IN FLORIDA BECAUSE OF THE TWO-YEAR TIME LIMIT. THERE ARE 94 ACROSS THE COUNTRY, AND WE KNOW THERE ARE INNOCENT PEOPLE WHO, SITTING IN JAIL, COULD BE EXONERATED, AND IF YOU FIND THE REAL PERPETRATOR, AND IF YOU WAIT, JUSTICE SHAW --

YOU HAVE TWO KINDS OF RULES. YOU HAVE A RULE THAT EFFECT WAITS LEGISLATIVE INTENT, AND -- EFFECT WAITS LEGISLATIVE INTENT, AND THEN YOU HAVE ANOTHER RULE THAT, WHAT YOU ARE TALKING ABOUT NOW, THAT EXPANDS WHAT THE LEGISLATURE HAS CLEARLY SAID WILL HAPPEN. SHOULD WE BE -- ISN'T THAT THE KIND OF RULE THAT WE ARE TALKING ABOUT NOW, TO ADD TO WHAT THE LEGISLATURE HAS SAID?

IT WOULD SEEM TO ME THAT WHEN SOMEBODY SETS A TIME LIMIT TO PROVE INNOCENCE, IT WOULD VIOLATE THE BASIC RIGHT UNDER THE BUTTERWORTH CASE TO HAVE POSTCONVICTION RELIEF UNDER FLORIDA LAW. I THINK THE TIME LIMIT IS A PROCEDURAL MECHANISM, AS WITH THE GUILTY-PLEA PROVISION, BUT, AGAIN, I WOULD DEFER TO MY FLORIDA COUNSOL THAT ISSUE.

HAVE YOU LOOKED AT THE RULE THAT IS BEING PROPOSED?

YES.

THE RULE SAYS THE MOTION HAS TO BE FILED WITHIN TWO YEARS OF THE DATE THE RULE IS ADOPTED, SO IT HAS GOT ITS OWN TIME LIMIT.

I OPPOSE THAT. I OPPOSE THAT ASPECT OF THE RULE AND WHAT I WOULD -- I DON'T THINK IT IS SUFFICIENT PROTECTION THAT INDIVIDUALS WOULD, YOU KNOW, THERE IS A CATCH-ALL PROVISION HERE THAT THE INMATES CAN BE GIVEN MORE TIME, IF THEY COULDN'T HAVE KNOWN, WITH DUE DILIGENCE, THE FACTS UPON WHICH TO MAKE AN APPLICATION, BUT I AM TELLING YOU, BECAUSE I TRAIN LAW ENFORCEMENT, PROSECUTORS, DEFENSE LAWYERS ACROSS THE COUNTRY, THAT MOST PEOPLE DON'T KNOW WHAT CAN BE TESTED. THAT, JUSTICE WELLS, THAT GLASS THAT YOU SIT FROM WITH THE WATER IF WE TAKE A SCHWAB, WE HAVE DNA ON IT THAT WE CAN THEN PUT INTO THE DNA DATA BANK AND MAYBE FIND SOMEBODY THAT IS A CONVICTED OFFEND ERROR AN UNSOLVED CRIME. MOST LAWYERS DON'T KNOW THIS. YOU CAN'T EXPECT INMATES TO KNOW IT. THE FDLE DOESN'T HAVE THE POWER TO DO MITOCHONDRIAL TESTING, SO PEOPLE DON'T KNOW THIS. MR. CHIEF JUSTICE: MR. SCHECK, WE APPRECIATE VERY MUCH YOUR COMMENTS AND YOUR COMING AND GIVING THEM TO US ON THIS VERY IMPORTANT MATTER.

THANK YOU FOR HEARING ME AND THANK YOU FOR YOUR CONSIDERATION OF THIS.

MAY IT PLEASE THE COURT. I AM SENIOR COUNSEL WITH THE DEPARTMENT OF LAW ENFORCEMENT, AND I STAND HERE UNIQUE AMONG ALL OF THE PARTIES BEFORE YOU, BECAUSE WE ARE A MINISTERIAL AGENCY INVOLVED IN THIS RULE, BUT I DO THINK WE NEED TO CLARIFY SOMETHING THAT HAS COME UP THE LAST COUPLE OF TIMES. IN THE LAST LEGISLATIVE SESSION, THERE WERE TWO DNA PROPOSALS BEFORE THE LEGISLATURE. ONE WAS TO EXPAND THE DNA DATABASE TO ALL CONVICTED FELONS AND THE POSTCONVICTION DNA TESTING THAT RESULTED IN THE STATUTE. FDLE AND ITS LOBBYISTS, I AM ONE OF THE LOBBYISTS. I APPEARED AT ALL OF THE COMMITTEE MEETINGS, WE DID EXPRESS THE CONCERN OF THE IMPACT IF BOTH OF THESE PROPOSALS WERE TO OPEN THE FLOODGATE, SO THAT THERE WERE A HUGE NUMBER OF TESTING REQUESTS COMING INTO THE DEPARTMENT, THAT IT COULD OUTSTRIP OUR PRESENT RESOURCES AND WE WOULD NEED LEGISLATIVE HELP TO ADDRESS THAT ISSUE. AS I STAND BEFORE YOU, IT IS MY PERCEPTION THAT THE LEGISLATURE MADE THE DETERMINATION TO INCLUDE, IN ITS STATUTE, THAT ONLY THOSE WHO WERE CONVICTED AT TRIAL, WITHIN THE SCOPE OF THE STATUTE THAT IT PASSED, PURELY AS A POLICY DETERMINATION, IN THOSE HEARINGS I HEARD THE LEGISLATORS SAY THEY WERE CONCERNED ABOUT INDIVIDUALS WHO WOULD TAKE AN OATH AND PLEAD GUILTY, BEING GIVEN THIS OPPORTUNITY TO HAVE THE DNA TESTING. I DO NOT BELIEVE THAT DNA, THAT FDLE'S INDICATIONS THAT, SHOULD THE FLOOD GATE OPEN, WAS A MAJOR FACTOR IN A DETERMINATION OF THE COURT, OF THE LEGISLATURE, IN PASSING THE LEGISLATION TO LIMIT IT AS IT STANDS BEFORE YOU. AS TO OUR POINTS THAT WE HAVE MADE, I THINK THEY ARE PRETTY CLEAR, AND THE RESPONSIVE MADE, WE DON'T SEE A COMPELLING REASON WHY ANOTHER COURT OPTION OUGHT TO BE INCLUDED, BUT SHOULD THIS COURT DECIDE TO INCLUDE ANOTHER COURT OPTION, IT SHOULD MAKE IT AT A HIGHER STANDARD THAN GOOD CAUSE. THE USE OF PRIVATE LABS IS SIGNIFICANTLY MORE EXPENSIVE THAN THE USE OF FDLE OR A LAB DESIGNATED BY FDLE, WHICH WOULD BE A PUBLIC LAB SUCH AS THE ONE AT BROWARD, PALM BEACH OR DADE COUNTY, AND WE BELIEVE THAT THE EXPENSES INVOLVED HERE IS A FACTOR THAT SHOULD BE TAKEN INTO ACCOUNT. MR. CHIEF JUSTICE: THANK YOU. MR. JACOBS.

GOOD MORNING. MAY IT PLEASE THE COURT. I AM HERE ON BEHALF OF THE 20 STATE ATTORNEYS, AND THEIR SOME 1700 ASSIST APARTMENTS, AND WE ARE FOLLOWING THE DEBATE -- ASSISTANTS, AND WE ARE FOLLOWING THE DEBATE THAT I HAVE HEARD TODAY. THIS COMES BEFORE YOU ABOUT WHETHER A PERSON WHO PLEADS GUILTY OR NOLO CONTENDERE OR NO CONTEST, CAN THEN, ANOTHER DATE, SIGN ANOTHER AFFIDAVIT AND SAY THEY ARE NOT GUILTY AND WOULD NOW LIKE TO TAKE A CHANCE WITH THIS DNA STUFF. I SUBMIT TO YOU THAT ARGUMENT WAS MADE TO THE FLORIDA LEGISLATURE BY SOME OF THE SAME PEOPLE IN THE ROOM HERE, AND THE LEGISLATURE REJECTED THAT, AND NOW YOU ARE ASKED TO EXPAND WHAT THE LEGISLATURE DID NOT PUT IN THAT POOL AND TO DAYS VOW WHAT GOES ON, TODAY, I THINK, IN ALL OF THE COURTS OF FLORIDA. THERE IS A COLLOQUY WHICH IS QUITE SOPHISTICATED NOW, I GUESS GETTING BETTER AND BETTER EVERYDAY, THAT GOES ON BETWEEN THE DEFENDANT, THE LAWYERS AND THE JUDGES. OUR PAPERS WE SUBMITTED JUST A FORM OF WHAT GOES IN NASSAU COUNTY AND IT IS PRETTY GOOD, AND IF IT IS THAT GOOD IN NASSAU COUNTY, I AM SURE IT IS MUCH BETTER IN OTHER PLACES, SO I WOULD SUBMIT TO YOU THAT ON BEHALF OF THE STATE ATTORNEYS, WE THINK THE POOL ON THE NOT TO BE EXPANDED. WE THINK AT BEST IT MAKES THE SYSTEM DISINGENIOUS, AND WE HOPE THAT YOU DON'T EXPAND THAT.

OUR POLICY IS THAT INNOCENT PEOPLE SHOULD NOT BE KEPT IN JAIL. IS THAT THE UNDERLYING POLICY THAT IS ACCEPTED BY THE LEGISLATURE AND EVERYONE ELSE?

YES.

SO WHY SHOULDN'T A PERSON THAT HAS ENTERED A 'NOLE-PLEA UNDER PRESSURE AND IS, IN FACT, INNOCENT AND CAN BE PROVEN INNOCENT BY DNA, WHY SHOULD HE BE EXCEPTED? DOESN'T THAT GO AGAINST POLICY PRINCIPLES? JUSTICE AND EVERYTHING ELSE?

AGAIN, THE ELECTED LEGISLATURE CONSIDERED THOSE IDEAS AND REJECTED THEM. I WOULD SUBMIT TO YOU THAT, IF YOU DO THAT, THEN MAYBE THE PLEAS THAT WE HAVE IN OUR COURTS TODAY WOULD BE A LOT LESS TIME TIME-CONSUMING, BECAUSE THERE IS A LOT OF TIME THAT GOES INTO CORRECT AND PROPER EXAMINATION, UNDER OATH, OF DEFENDANTS. THE LAWYERS INVOLVED, THEY HAVE A DUTY TO THE COURT TO NOT PLEAD PEEP HORL GUILTY. THE JUDGES INVOLVED -- PEOPLE WHO ARE GUILTY. THE JUDGES INVOLVED HAVE A DUTY TO SOCIETY NOT TO LET PEOPLE WHO ARE NOT GUILTY PLEAD TO CASES LIKE THAT, AND SO I SUBMIT TO YOU THAT THOSE ARGUMENTS HAVE BEEN WAIVED BY THE LEGISLATURE. THEY ARE THE ONES WHO ALLOCATE THE RESOURCES AND ARE INVOLVED IN THAT PART OF THE PROCESS. MR. CHIEF JUSTICE: YOUR TIME IS UP, MR. JACOBS.

GOOD MORNING. THE COURT, BASED UPON LEGISLATION OF THE PAST, HAS A VERY ACCEPTABLE RULE, AND THE STATE IS WANTING TO GO FORWARD WITH THE RULE IN PLACE. I SUGGEST, AS I DID MY COMMENTARY, I THINK THERE ARE TWO DEFICIENCIES TO ADD TO THE RULE THAT WOULD NOT CHANGE THE POSTURE OF THE RULE, AND THAT IS TO ENSURE THAT THERE IS NO LIMITATION WITH REGARD TO THE STATE EXAMINING DNA EVIDENCE AT THE POINT IN TIME IN POSTCONVICTION, THAT THIS RULE DOES NOT SERVE AS A BAR TO THAT, AND THE SECOND IS THAT THERE IS A FOREWARNING THAT IS PROVIDED IN THE RULE, THAT ANYBODY WHO IS INVOLVED IN THE RULE WILL FULLY APPRECIATE, AND THAT IS THAT THE DEFENDANT APPRECIATES THAT, IF THERE IS EVIDENCE THAT COMES BEFORE THE COURT, VIA A DNA, THAT IT WILL BE USED, EVEN IF IT IS AGAINST HIM. IF IT IS A NEGATIVE RESULT IN BEHALF OF THE DEFENDANT. I THINK THAT IS THE -- THAT THAT WOULD BE ONLY FAIR THAT THAT BE IN OUR RULE, REGARDING THE DNA EVIDENCE. THE ONLY OTHER THING I WOULD LIKE TO MENTION, MR. SCHECK BROUGHT IT UP WITH REGARDS TO THE TIME LIMITATION, AND IN FACT THERE ARE A NUMBER OF STATES OUT THERE AND THIS COURT HAS ASKED ABOUT THAT, THERE ARE A NUMBER OF STATES OUT THERE WHO HAVE FOLLOWED THE MODEL RULE. I WOULD LIKE TO ADD, THOUGH, THAT PLACES LIKE CALIFORNIA HAS A THREE-YEAR TIME LIMITATION AND OTHER STATES HAVE IMPOSEED LIMITATIONS WITH REGARD TO HOW MUCH TIME CAN BE IMPOSED, BUT I THINK THE MOST IMPORTANT ASPECT OF THIS IS THAT WE HAVE A RIGEING -- A RAGING BATTLE RIGHT NOW IN U.S. CONGRESS, WITH REGARD TO THE FEINSTEIN AND THE LEAHY BILL, AND THERE IS A TIME LIMITATION UNDER THE PROPOSAL BY FEINSTEIN OUT OF CALIFORNIA, SO I WOULD ASK THIS COURT, PERHAPS, IF YOU ARE CONCERNED WITH REGARD TO THE TIME LIMITATIONS THAT, PERHAPS OTHER ENTITIES ARE, IN FACT, LOOKING AT TIME LIMITATIONS AND IN FACT THE STATE MAY HAVE TO EXPAND IT. IF, IN FACT, THERE IS A NATIONAL CALL TO ARMS WITH REGARD TO DNA EVIDENCE AND THERE IS A PROVISION THAT REQUIRES THE STATE TO OPT IN, THERE MAY BE A TIME LIMITATION THAT REQUIRES A THREE-YEAR LIMITATION IN THAT, BUT THAT IS PART OF THE RULE THAT HAS NOT PASSED, OR THAT IS PART OF THE PROPOSALS THAT ARE CURRENTLY IN CONGRESS, SO I WOULD ASK THE COURT, BEFORE YOU DO PASS ANYTHING, THAT, IN FACT THERE ARE OTHER TIME LIMITATIONS OUT THERE.

ARE THERE ANY PRESENT LIMITATIONS ON THE STATE'S RIGHT TO DNA TESTING PROVISION?

NO, YOUR HONOR, THERE IS NOT, BUT THERE IS LITIGATION THAT IS CURRENTLY ENGAGED IN THE STATE, AND TO ANSWER JUSTICE SHAW'S QUESTIONS, PROBABLY SOME OF THESE QUESTIONS WILL BE RESOLVED BY LITIGATION THAT COMES BEFORE THE COURT. I THINK THERE ARE SOME ISSUES, THOUGH, THAT DON'T REALLY REQUIRE THE CRUCIBLE OF LITIGATION. IT CAN BE RESOLVED THROUGH CAREFUL REVIEW AND DISCERNING THAT THIS WOULD BE APPROPRIATE AS PART OF THE RULE.

AND ONE FINAL QUESTION.

UM-HUM.

WHAT IS YOUR POSITION ON INCLUSION OF PERSONS WHO PLEA? ENTER PLEAS?

THANK IT GOES BEYOND THE SCOPE OF THE LEGISLATION. I THINK THE LEGISLATURE, IN ALL OF THE DISCUSSIONS THAT WERE BEFORE THE LEGISLATURE, IN FACT HAD THOSE ARGUMENTS MADE BEFORE IT. CERTAINLY ONE WOULD HAVE TO BRING TO QUESTION THE VALIDITY OF OUR GUILTY PLEAS IN THIS STATE, IF IN FACT WE ARE ASCERTAINING THAT A LARGE NUMBER OF INDIVIDUALS ARE, IN FACT, INNOCENT, AND THEY HAVE PLED GUILTY OR NOLO CONTENDERE. BUT IF YOU REALLY LOOK AT THE NOTION OF THAT, THE NOLO CONTENDERE, A 'NOLE-CONTENDER PERSON IS NOT SAYING "I AM GUILTY" BUT RATHER I CAN'T PROVE MY INNOCENCE, AND WE SAY NOLO CONTENDERE PLEAS ARE BASED ON A NUMBER OF REASONS, AND WE DON'T QUESTION WHY HE IS ENGAGING IN THAT. THAT IS NOT TO STAND UP HERE BEFORE THE SUPREME COURT AND SAY THAT ANYBODY WHO IS INCARCERATED IS INNOCENT. MR. CHIEF JUSTICE: THANK YOU. I THINK YOUR TIME IS UP. JUDGE EATON.

AS I HAVE BEEN DEALING WITH THIS PROCESS, I HAVE BEEN STUDYING THE HISTORY OF HABEAS CORPUS, AND, OF COURSE, WE ALL KNOW THAT THE CONSTITUTION GIVES THIS COURT THE RIGHT TO ISSUE THESE WRITS. WE, ALSO, KNOW THAT THE LEGISLATE YOUR HAS -- THE LEGISLATURE HAS NO BUSINESS TRYING TO CURTAIL THAT RIGHT OR THE EXPANSE OF THOSE WRITS. I HAVE BEEN LISTENING TO THE ARGUMENT, AND I FIND THAT HAS BEEN ARGUMENTS THAT CLAIM THAT WHAT THIS RULE DOES IS TO TRY TO EXPAND THE STATUTE. AND I SUGGEST THAT EXPANSION VERSUS CURTAILMENT IS WHERE WE OUGHT TO BE TALKING ABOUT. WHAT THE STATUTE DOES IS CURTAIL THIS COURT'S RIGHT TO ISSUE WRITS OF HABEAS CORPUS. THIS RULE DOES NOT EXPAND THAT RIGHT. THE RULE SIMPLY STATES IT. SO IF YOU THINK OF IT IN THAT WAY, I THINK IT WILL BECOME MORE CLEAR. LET'S ASSUME THAT YOU GO ALONG WITH THE LEGISLATION, AND YOU JUST FASHION A RULE THAT IS INVOLVING THE LEGISLATION. WHAT IS GOING TO HAPPEN WITH THAT? IS IT GOING TO RESULT IN MANY MORE MOTIONS TO WITHDRAW PLEAS, ON THE BASIS OF INEFFECTIVE ASSISTANCE OF COUNSEL? IS IT GOING TO RESULT IN ADDITIONAL PETITIONS FOR WRITS OF HABEAS CORPUS IN THIS COURT? BECAUSE WE ALL KNOW THAT THIS COURT HAS NOT HESITATED, IN THE PAST AND ON AN APPROPRIATE CASE, TO ALLOW TIME-BARRED MATTERS TO BE HEARD, OR IS IT JUST GOING TO AMOUNT TO AN ADDITIONAL CASELOAD FOR ALL OF US, IF YOU DON'T AUTHORIZE PEOPLE WHO HAVE ENTERED GUILTY PLEAS OR ENTERED NOLO PLEAS? I WOULD LIKE TO JUST ADDRESS MS. SNURKOWSKI'S COMMENTS, AND THEN I WILL BE FINISHED. I DO NOT BELIEVE, JUSTICE PARIENTE, THAT IT IS NECESSARY TO INCLUDE IN THIS RULE, A WARNING TO DEFENDANTS THAT, IF THEY HAVE DNA EVIDENCE THAT GOES AGAINST THEM, THAT IT CAN BE USED AGAINST THEM. THE STATE OF FLORIDA HAS NEVER HAD PROBLEMS USING EVIDENCE AGAINST DEFENDANTS. FURTHER, I DON'T BELIEVE THAT IT IS NECESSARY FOR THERE TO BE ANYTHING IN THE RULE TO ALLOW THE STATE TO HAVE ACCESS TO DNA EVIDENCE. THEY HAVE ALREADY GOT IT. IT IS NOT NECESSARY. WITH THOSE MALT -- MATTERS IN MIND, THANK YOU ALL VERY MUCH. MR. CHIEF JUSTICE: MR. SCHECK, I THINK YOU PERHAPS WANTED TO RESPOND DIRECTLY TO THE CALIFORNIA SITUATION, AND SO I WILL GIVE AWE MINUTE TO DO THAT.

YES. I WAS UNCLEAR WHETHER MY ADVERSARY MISSPOKE, BUT THE CALIFORNIA STATUTE HAS NO TIME LIMIT OPPOSE THE CONVICTION DNA TESTS, AND I SHOULD KNOW, THAT THE LEGISLATURE APPROPRIATED $850,000 TO LAW SCHOOL INNOCENCE PROJECTS, TO FUND THIS MANDATE. MR. CHIEF JUSTICE: THANK YOU VERY MUCH. THANK YOU, COUNSEL, AND, I AGAIN REGRET THAT WE HAVE HAD LIMITED TIME ON A VERY IMPORTANT SUBJECT BUT WE APPRECIATE YOUR STAYING WITHIN IT. THANK YOU.