Florida Attorney General Appeals Ruling Allowing DNA Testing for Prisoners Who Have Been on Death Row More than 40 Years

The Florida Attorney General’s office has tak­en steps to block DNA test­ing agreed to by local pros­e­cu­tors and approved by the tri­al court for two Florida death-row pris­on­ers who have pro­fessed their inno­cence for more than four decades. 

Attorney General Ashley Moody has announced she will appeal an October 15, 2021 rul­ing by Florida Circuit Court Judge Wayne C. Wooten that her office lacked stand­ing to con­test Wooten’s pri­or order grant­i­ng DNA test­ing to death-row pris­on­er Henry Sireci. Moody had argued that the Orange/​Osceola County State Attorney Monique H. Worrell lacked the author­i­ty to con­sent to post-con­vic­tion DNA test­ing for Sireci and death-row pris­on­er Tommy Zeigler with­out the pri­or approval of state prosecutors. 

No case law autho­rizes the state attor­ney general’s office to sub­sti­tute its judg­ment for that of the local­ly elect­ed state attor­ney, and Assistant Attorney General Scott A. Browne admit­ted that allow­ing it to do so would be ​“break­ing new ground.” Although local state attor­neys gen­er­al­ly take the lead in coun­ty court pro­ceed­ings, there is a ​“carve-out,” Browne argued, in death-penalty cases. 

In a state­ment to the Tampa Bay Times, Moody said ​“the Florida Attorney General’s Office is co-coun­sel in ALL cap­i­tal post-con­vic­tion mat­ters” and her inter­ven­tion was need­ed because Worrell had con­sent­ed to test­ing that was not per­mit­ted under Florida’s post-con­vic­tion statute. Moody assert­ed that the statute lim­its DNA test­ing to instances in which it could clear­ly exon­er­ate a pris­on­er, which, she said, did not include test­ing that only pro­vides evi­dence of innocence.

Wooten dis­agreed, say­ing, ​“I do not read that statute to say you are co-equal with the state attor­ney. I read that statute as to autho­rize you to assist the state attor­ney in these capital proceedings.” 

Retired Circuit Court Judge O.H. Eaton Jr., a death penal­ty expert who is not involved in either case, ques­tioned Moody’s oppo­si­tion to the DNA test­ing. ​“Why would the attor­ney gen­er­al of Florida want to com­plain about hav­ing a test that’s going to assure that we are not exe­cut­ing an inno­cent per­son? That doesn’t make any sense to me,” he said.

“There’s no con­ceiv­able legit­i­mate inter­est in not get­ting at the truth,” Death Penalty Information Center exec­u­tive direc­tor Robert Dunham told the Times. ​“It’s a prosecutor’s respon­si­bil­i­ty to do jus­tice, not to expe­dite questionable executions.”

Wooten’s rul­ing that Moody lacked stand­ing to block Sireci’s DNA test­ing would also affect death-row pris­on­er Tommy Zeigler, for whom Wooten also autho­rized DNA test­ing pur­suant to a sim­i­lar agree­ment with Worrell. Moody sought to stop the test­ing in both of their cases.

Sireci and Zeigler were con­vict­ed and sen­tenced to death in cas­es tried in 1976 by the same Orange County pros­e­cu­tor before the same cir­cuit court judge. Neither man received a unan­i­mous jury rec­om­men­da­tion for death; and, in Zeigler’s case, the judge over­rode the jury’s rec­om­men­da­tion of a life sen­tence. Both men have con­sis­tent­ly main­tained their inno­cence and long sought DNA test­ing to bol­ster their innocence claims.

Sireci and Ziegler are both 76 years old and have each spent 45 years on death row. Seth Miller, exec­u­tive direc­tor of the Innocence Project of Florida, raised con­cerns that as a result of Moody’s appeal, the men could die before their cas­es are resolved. ​“I’d be con­cerned that their health would fail and they might die in jail, and it’s real­ly unseem­ly to take what’s a friv­o­lous appeal and try to run out the clock,” Miller said. ​“And frankly, all anyone’s try­ing to do is have a search for the truth here. Nina Morrison of the Innocence Project, who is rep­re­sent­ing Sireci, agreed. ​“We have an agree­ment for test­ing,” she said. ​“And every day that he sits on death row is the risk that he could die in prison before he can have the test­ing that could vindicate him.”

Florida has had more death-row exon­er­a­tions than any oth­er state, with 30. A Tampa Bay Times inves­ti­ga­tion found that two dozen death-row pris­on­ers had been denied a total of 70 requests for DNA test­ing, or about three out of every four requests. 

DPIC’s February 2021 spe­cial report, The Innocence Epidemic, found a strong link between non-unan­i­mous death sen­tences and wrong­ful con­vic­tions. Although only three states — Florida, Alabama, and Delaware — per­mit­ted judges to over­ride jury votes for life or impose death sen­tences based on non-unan­i­mous jury rec­om­men­da­tions for death, more than 15 per­cent of all death-row exon­er­a­tions in the U.S. occurred in such cas­es. At least 23 exon­er­a­tions in Florida, five in Alabama, and one in Delaware involved these prac­tices and con­sti­tute a vast major­i­ty (90.6%) of the 32 death-row exon­er­a­tions in those states dur­ing the peri­ods in which the prac­tices were permitted.

Twenty-six of Florida’s 30 death-row exon­er­a­tions since 1973 are cas­es in which judges imposed death sen­tences despite one or more jurors hav­ing vot­ed for life. DPIC was able to deter­mine the jury votes in 25 of those cas­es and found that juries had unan­i­mous­ly rec­om­mend­ed death in only two of them.

In August 2020, DNA evi­dence exon­er­at­ed for­mer Florida death-row pris­on­er Robert DuBoise, 37 years after his tri­al judge over­rode a jury rec­om­men­da­tion for life and sen­tenced DuBoise to death. When Moody attempt­ed to inter­vene in the tri­al court in June 2021 to block DNA test­ing for Ziegler, Hagley respond­ed, ​“The state’s own expert tes­ti­fied that the DNA test­ing we had pro­posed would show if Tommy Zeigler is inno­cent or guilty. … Why are they afraid of the truth? Why are they afraid to give us a chance?”