DNA - Florida

b. DNA.

19. The State of Florida has now decided that DNA evidence will not be subjected to the procedural bars that apply to other evidence of innocence. However, those ignored by the State are those who cannot prove their innocence through DNA testing because the State destroyed the evidence before the testing could be conducted. In fact, these are the circumstances in Mr. Rutherford=s case.

20. As the ABA Report on Florida makes clear: Many who have been wrongfully convicted cannot prove their innocence because states often fail to adequately preserve material evidence.@ ABA Report at 43.

Indeed, the State of Florida did not require the preservation of physical evidence in death penalty cases until October 1, 2001.@ Id. at 56. There is no protection for defendants who fall into this category.

Thus, depending on whether an agency of the State of Florida had the space to store evidence, the weather, and other extraneous factors, evidence of innocence will be available to some, but not others.

There are no ramifications for the State or protections for defendants who encounter such a situation.

The distinction between the case where the evidence was retained and the testing demonstrates innocence and the case where the evidence would have established innocence, but was destroyed, can only be described as wanton@ or freakish@. Furman, 408 U.S. at 310.