The state of Florida leads the country with twenty-two of the 125 death row exonerations in twenty-five states since 1973. During the same time period, Florida executed sixty prisoners and has not granted clemency since 1983. Within these pages are the stories of three Florida death row prisoners who have documentation of exculpatory evidence of their factual innocence, most of which has never been heard by a jury. Tommy Zeigler has been on death row for nearly thirty-one years, Bill Kelley for twenty-three years, and Anthony LaMarca for nine years.

During these years, local, state and Federal courts have listened to their lawyers present numerous important issues and newly discovered evidence throughout the complicated post conviction appeals process, but have failed to grant relief. Their attempts to have the truth heard by the court system have been futile.

We have basic assumptions about criminal trials. We believe that a jury heard all the facts during trial and convicted defendants based on the evidence. We believe each defendant had competent counsel whether privately retained or state appointed for those who couldn’t afford it. We believe the judge is fair and impartial. And we believe state prosecutors uphold the laws that protect each of us against wrongful convictions in their search for the truth.

Yet these assumptions are not present in every trial. Often, defense and state attorneys do not have all the evidence or witnesses at the time of the original trial. Exculpatory information may not be known until years have passed. Underlying public and political pressure, such as upcoming elections, promotions or appointments, can affect the actions and decisions of judges and lawyers.

Evidence is an extremely important factor in the outcome of appeals and is one of the most important issues in overturning the defendant’s sentence or causing a reversal of conviction. However, under Florida law, the defendant cannot address evidence or a limited number of other legal issues until the post conviction appeals. At this stage, the defendant can raise issues of newly discovered evidence, ineffectiveness of counsel, competency, failure to disclose exculpatory evidence, deliberate use of misleading testimony, and sentencing errors.

Only under very strict conditions does the court permit a defendant to present newly discovered evidence. First, the evidence must be of such a nature that it would produce an acquittal at retrial. Second, the court will only permit new evidence if both of two restrictions apply: at the time of the defendant’s original trial, the newly discovered evidence could not have been known, and either the defendant or his lawyer could not have known of it had they used diligence in their discovery attempts. Although it might seem that the criminal justice system would welcome, or at least allow, the introduction of any information that could prove a defendant’s innocence, the courts rarely permit the presentation of new evidence.

By reading these stories, you will understand how the original trial impacts the course of a capital murder case during conviction, sentencing and the appeals process. You will understand that DNA testing on evidence—found in approximately ten percent of cases, does not necessarily result in a ruling of innocence. You will understand the many flaws and failings in our criminal justice system, as reported in the 2006 report by the American Bar Association on the death penalty in Florida. You will read about prosecutorial and police misconduct including the use of jailhouse snitches who testified only after making deals for favorable treatment on their own pending charges and misled juries about the motivation to testify; serious suspects who weren’t investigated; witnesses who weren’t called to testify; witnesses who lied; inaccurate eyewitness identification; and evidence withheld from defense teams. There is judicial misconduct shown by judges who didn’t recuse themselves, permitted ex parte (without both defense and state attorneys present) communication, allowed misinformation to be presented to the jury, or improperly instructed the jury. There are inadequate and ineffective defense counsel claims, both at trial and during the post conviction proceedings.

The appeals process that follows the trial is complicated and hard to understand. The courts can bar evidence due to time restrictions and limitations or refuse to hear it at all. Judges often rule that even if a jury had heard the testimony or seen the evidence, it would not have changed the outcome. However, the court may only hear the additional evidence over the course of many years and not view the total picture of accumulated evidence when it makes its rulings. It is extremely difficult to predict how a jury might have voted had all the facts been presented at the time of the capital trial. These stories will reveal that picture, so you the reader, can make up your minds whether justice has truly been served in these cases.

Although the State of Florida recently completed its 2007 study on the administration of lethal injection, there have been no commissions appointed to study the flaws of capital punishment revealed by the comprehensive American Bar Association study in 2006. Recommendations include “The State of Florida should create two independent commissions to, a) establish the cause of wrongful convictions in capital cases and recommend change to prevent future wrongful convictions in these cases, and b) review claims of factual innocence in capital cases that, if sustained, would then be reviewed by a panel of judges.”

The Florida Death Penalty Assessment Report and Supplemental Materials can be found at http://www.abanet.org/moratorium/assessmentproject/florida.html. In the ABA’s efforts to discover both successes and inadequacies of the death penalty process, panels of judges, prosecutors, defense attorneys, state bar association leaders and law professors have also examined the systems in Alabama, Arizona, Georgia, Indiana, Ohio, Pennsylvania, Tennessee and Virginia. The panels, with both pro and against death penalty views, focused on the capital punishment process not whether or not a state should have a death penalty. The same problems appear in death penalty systems throughout the country.

The execution of a human is irreversible. The possibility of executing one innocent person must cause great concern to all of us who want a fair and just system that convicts only the guilty. We want to believe our system works and if mistakes have been made that the state is as diligent in granting relief as it was in obtaining the conviction. As unlikely as we might believe it could be, any one of us could find ourselves or a loved one wearing the shoes of Tommy, Bill or Anthony as we languish on death row hoping against hope that the truth will be revealed and finally for justice.