20-Nov-08

The Judicial Fair Play Bill

A bill to be entitled the Judicial Fair Play Act providing unbiased treatment for defendants by officers of the court, amending ch. 38, F.S. to provide that judges shall not preside if any legitimate claim of bias is made whether before, during or after trial, providing criminal penalties for judges who are later found to have prejudiced a trial outcome, and providing for specified relief in the event of proven prejudice after a conviction; amending ch. 27 F.S. to provide state attorneys who are concerned equally with fair play as with conviction of the guilty, providing criminal penalties for state attorneys and their assistants who are later found to have prejudiced a trial outcome through acts of commission or omission, and providing specified relief in the event of proven prejudice after a conviction.; amending ch. 839 to provide penalties for prejudicial outcomes; amending ch. 925.11 to provide for DNA results that disprove the theory of the prosecution; providing an effective date.

WHEREAS, all people are entitled to equal justice under the law, and WHEREAS, human nature is flawed by the tendency of all people to succumb to bias that may not be apparent even to themselves, and WHEREAS, it is often difficult to consider alternative explanations of a criminal event once an initial hypothesis has been formed, and WHEREAS, blood evidence which was sufficient for conviction may, with new DNA analysis, disprove the theory leading to conviction, but not exonerate the convicted party, 

NOW THEREFORE, Be it enacted by the Legislature of the state of Florida:

Section 1. This Act may be cited as the “Judicial Fair Play law.”

Section 2. Add to Ch. 38 F.S. section 38.11: Disqualification of Judges for prejudice after a trial

38.11: --Whenever a party to any action or proceeding makes and files an affidavit stating  that he or she did not receive a fair trial in the court where the suit was tried, or a fair hearing by a court above the trial court, on account of the prejudice of a presiding judge  or other officer of the court against the applicant or in favor of the adverse party,  the chief judge from that circuit, or, in the case of a higher court, a judge to be chosen by rules established by the Supreme Court shall, upon a finding of creditable allegations, appoint an investigator to investigate the allegations. The affidavit must allege a specific, verifiable fact or incident which would indicate that a conflict of interest exists between the judge or other officer of the court and the defendant or in favor of the adverse party . Upon a finding that the allegations have merit, a special prosecutor may be assigned to prepare the evidence based on rules to be established by the Florida Supreme Court.  

Section 3. Amend 27.02. F.S. to add the phrase “and responsibilities” to the title and add a new section 27.02 (2).

Section 27.02 : Duties and Responsibilities before the Court  

27.02(2) It is as much the responsibility of the state attorney  to refrain from using improper methods to secure a wrongful conviction as it is to use every legitimate measure to bring about a just conviction. In carrying out these responsibilities, the state attorney shall investigate without prior prejudice all evidence for and against a defendant. All exculpatory evidence shall be provided to the defense in a timely manor even if the state attorney believes it is not conclusive. Whenever a party to any action or proceeding makes and files an affidavit stating  that he or she did not receive a fair trial in the court where the suit was tried on account of the prejudice of the state attorney of that circuit against the convicted party or in favor of the adverse party,  the chief judge from that circuit shall, upon a finding of creditable allegations, appoint an investigator from another judicial circuit to investigate the allegations. The affidavit must allege a specific, verifiable act that would evidence a conflict of interest  between the prosecutor and the defendant or in favor of the adverse party. A discovery of exculpatory evidence after a trial which the prosecutor had in his or her possession before the trial but failed to provide to the defense shall constitute evidence of bias. Upon a finding that the allegations have merit, a special prosecutor will be assigned from the same judicial circuit as the investigator to prepare a case to be heard by the Circuit Court for a judicial circuit to be selected by rules to be established by the Florida Supreme Court.   

Section 4: Amend ch.839.15 FS to add the words “responsible for prejudicial outcome”to the title and revise the section as follows:

Section 839.15: Judicial Officer responsible for prejudicial outcome or withholding records 

Any justice of the Supreme Court or judge of the circuit court or state attorney who shall be found guilty under Section 38.11 FS or Section 27.02(2) FS, or upon resignation or on being impeached, fails to file all papers and records in her or his possession belonging to her or his court or judicial circuit with the proper clerk, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Section 5: Amend ch. 925.11 FS to add the words "refute the theory of the prosecution" to 925.11(a)1 FS as follows:

Section 925.11(a)1.  A person who has been tried and found guilty of committing a felony and has been sentenced by a court established by the laws of this state may petition that court to order the examination of physical evidence collected at the time of the investigation of the crime for which he or she has been sentenced that may contain DNA (deoxyribonucleic acid) and that would exonerate that person, refute the theory of the prosecution, or mitigate the sentence that person received. 

Section 5(a): The Florida Supreme Court shall amend the Florida Rules of Criminal Procedure, rule 3.853 to implement this provision

Section 6: The bill will become effective on the first  of July after it is signed into law and published according to existing procedures.