Pay elusive in unjust convictions

When police broke down Luis Diaz's front door to arrest the notorious Bird Road rapist, they found a wisp of a man — 5-foot-3 and 134 pounds.

Diaz was a startling contrast to the 6-foot, 200-pound attacker described by some of the victims of the rapes that paralyzed Miami in the late 1970s. Still, Diaz was hauled off in his pajamas, convicted and sent to prison in 1980.

In Jacksonville, 14 years later, prosecutors fingered Chad Heins in a different case — the murder of his pregnant sister-in-law. Even though crime scene evidence did not match, Heins was sentenced to life in the stabbing.

Today, Diaz and Heins are free, cleared by DNA evidence. Like Wilton Dedge and Alan Crotzer, they have become avatars of injustice in Florida.

The state has apologized and paid Dedge and Crotzer $3.25-million combined. The road is less clear for Diaz and Heins despite a bill Gov. Charlie Crist says he will sign into law.

The legislation has been heralded as a milestone in righting past sins by creating an "automatic" process to pay the wrongfully convicted $50,000 for each year they spent in prison.

Diaz spent 26 years; Heins 13.

No longer, lawmakers declared, will people have to navigate the state's cumbersome and unpredictable claims bill process before the Legislature.

Yet there is nothing automatic about the new way, and some fear it may present greater obstacles.

The system requires people to go back to the same court that sentenced them and seek an order declaring them wrongfully incarcerated. Doing so entails re-introducing evidence to prove they are not guilty and, more significantly, allows prosecutors to object.

"It's a false assumption that prosecutors won't come in and gum up the works," said Seth Miller, executive director of the Innocence Project of Florida, which was involved in the two cases. "It's not their job to say someone is innocent."

Much of the attention on the wrongful incarceration legislation has been on a different barrier. A person seeking compensation must not have committed a felony prior to the crime he was exonerated for. Republican lawmakers insisted on the "clean hands" provision — the only one of its kind in the country. Democrats, including bill sponsor Sen. Arthenia Joyner of Tampa, acquiesced in order to get something passed.

That provision is keeping compensation out of the hands of five other men in Florida who have been cleared by DNA evidence. They can seek money through the claims bill process, but chances are even slimmer because the new system was designed to replace that process.

Crist said this week that he is not "wild" about the clean hands provision but that he will sign the bill (SB 756) this month because it moves the ball forward. He cited Joyner's support.

"I wish it wasn't in there," Joyner said in an interview on Thursday. "But it's a beginning. I want to make sure persons who are eligible will get the money."

She acknowledged, however, that a confrontational court hearing could prove cumbersome or worse. She said she has already started work on a "glitch bill" to alleviate some of the hurdles.

• • •

Heins' ordeal began April 17, 1994, when his sister-in-law was found dead in a Jacksonville apartment. She had been stabbed 27 times. Heins, the only other one staying at the house that night, insisted he was innocent.

Police did not find a murder weapon and Heins did not have blood on his clothes, nor was there evidence he had washed them.

The break came in 2004 when DNA evidence was retested. It showed that three hairs found on the victim's body came from one person — not Heins. A fingerprint on a bloody sink in the apartment also was not matched to Heins.

He was released three years later, in December 2007. Heins, now 34, lives in Wisconsin and works on a farm.

Diaz was arrested at his home in August 1979, accused of raping more than 20 women near Bird Road in Coral Gables. The attacker would flash car headlights to get women to pull over, then show a gun and sexually assault them.

Diaz became a suspect after a victim saw him in his car at a gas station. But the witness described the rapist as about 200 pounds and 6 feet tall. Despite the discrepancy and a dearth of physical evidence, Diaz was convicted in 1980.

In 1993, two witnesses recanted their stories, and after years of litigation, the charges were vacated in 2001. Subsequent testing of semen in two of the rape cases showed it was the same man, but not Diaz.

When he walked free on Aug. 3, 2005, the 67-year-old Diaz had one word for the reporters who gathered around him: "victory." He continues to reside in Miami.

• • •

Advocates for Diaz and Heins declined requests to interview the men, hoping not to hurt already dicey prospects.

Prosecutors have "never been willing to take the position that Diaz was factually innocent," said Stephen Warren, a Holland & Knight lawyer who did pro bono work on the case.

One fear, Warren said, is that Diaz will have to prove he is not guilty in all the cases he was charged under. DNA evidence and a witness who recanted cleared him of two, and prosecutors dropped the other cases because of the time that elapsed.

But those could prove relevant once again. "This could put an unfair burden on Mr. Diaz," Warren said. "You are asking him to prove 30 years later that he was innocent of the other five convictions when the evidence is no longer there. If it existed, he would be the first to ask that it be tested."

Don Horn, a chief assistant state attorney in Miami, acknowledged there were remaining questions about the case. But he said he could not comment on what would happen in a court hearing, since one has not been scheduled.

After a judge threw out Heins' conviction in December 2006, prosecutors said they still had compelling evidence and appealed. His own brother believes he is guilty.

"I just can't believe that he could have been innocent," State Attorney Harry Shorstein said at the time. Even after a retrial attempt was abandoned, prosecutors said they were still investigating.

Pay elusive in unjust convictions 05/26/08 [Last modified: Tuesday, May 27, 2008 2:32pm]

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