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       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.
   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,
   35  Be It Enacted by the Legislature of the State of Florida:
   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 which that may contain DNA (deoxyribonucleic acid) and
   82  that would exonerate that person, or mitigate 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.
   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, or
  114  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.

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