A Florida circuit court judge recently ruled that Attorney General Ashley Moody does not hold legal standing to stop DNA testing sought by a 73-year-old death row inmate. His lawyers had previously reached an agreement for the testing with the local prosecutor.
The attorney general’s office appealed the decision by Judge Wayne C. Wooten on Friday, essentially stopping Henry P. Sireci from having the testing done and setting up a possible showdown over how much power Moody’s office has in local court cases.
The appeal to the Florida Supreme Court has the potential to set precedent, experts said, and will likely affect another man on death row, Tommy Zeigler.
Sireci and Zeigler, 76, have lived on death row for 45 years.
A jury convicted Sireci in the stabbing death of Howard Poteet, an Orlando used car lot owner, on Dec. 3, 1975. Zeigler was convicted in the Christmas Eve 1975 killing of his wife, in-laws and another man at his family’s furniture store in Winter Garden, just outside Orlando. Zeigler was shot in the stomach that night and has maintained that he was the victim of a robbery.
Their cases are unrelated, but both men were convicted in 1976 by the same Orange County prosecutor and before the same judge. Both have been seeking advanced DNA testing at their own expense for at least a decade. Zeigler has asked and been denied at least six times, though the judge in his case has yet to rule on whether Moody’s office can stop the DNA tests agreed to by Ninth Judicial Circuit State Attorney Monique H. Worrell.
Retired Seminole County Judge O.H. Eaton Jr., a circuit court judge for 26 years and a death penalty expert who has no involvement in either case, questioned the actions of the attorney general’s office.
“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?” Eaton said. “That doesn’t make any sense to me.”
Florida leads the nation in exonerations from death row, with 30, according to the Death Penalty Information Center in Washington, D.C.
Moody’s office responded by email to questions from the Tampa Bay Times.
“Please remember that the Florida Attorney General’s Office is co-counsel in ALL capital post-conviction matters, and it is our office’s duty to make sure post-conviction proceedings do not violate the law,” a spokesperson wrote. “Attorney General Moody will always fight to ensure justice is served for the family members of murdered Floridians and that our legal system is fair and just.”
But Seth Miller, executive director of the Innocence Project of Florida, pointed out that Zeigler and Sireci are old men.
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“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.”
“We have an agreement for testing”
During a Sept. 29 Zoom hearing in Sireci’s case, Assistant Attorney General Scott A. Browne outlined the office’s reasons for intervening. The agreement reached by Sireci’s lawyers and the local prosecutor failed to meet the criteria for Florida’s DNA testing rules, which only allow the tests if they would outright exonerate.
Browne urged Judge Wooten, who had already signed off on the agreement, to withdraw his order allowing the DNA testing. The Florida Supreme Court has twice rejected Sireci’s efforts to obtain the tests, he said.
Wooten asked Browne if he thought that a judge should decide between two attorneys on the same side who had a disagreement.
Browne said he didn’t have the authority to answer that but reminded the judge that the attorney general was considered co-counsel in capital cases and often takes the lead in responding to post-conviction challenges.
“I suggest to you that I know the case much better than any new attorneys at the state attorney’s office,” Browne said.
“In the appropriate case, the attorney general’s office will seek DNA testing,” he said. “I personally have fought for that in — in at least one case, where there was a rape test kit and it made sense.”
Nina Morrison, senior litigation counsel for the Innocence Project in New York City and one of the lawyers representing Sireci, acknowledged that Florida law mentions the attorney general shall act as co-counsel of record. But it does not define that role, she said, or mention that it must be given notice in local cases.
She said Florida’s DNA testing law applies only when a defendant wants a judge to approve testing over a state attorney’s objection.
“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.”
She added that Sireci originally signed an agreement with former State Attorney Jeffrey L. Ashton, now an Orange County circuit judge, for partial testing of evidence in 2010. The attorney general’s office wasn’t notified then of that agreement, she said, and it never complained.
“I mean they really have no authority to come in, even if notice is given, and oppose the order,” she said. “The state attorney, and not the attorney general, is the prosecuting authority.”
Wooten said he could not find any case law on the relationship between a state attorney and the attorney general. Browne responded that it would be “breaking new ground.”
In appellate courts, he said, attorneys general took the lead. But in the Ninth Judicial Circuit, which comprises Orange and Seminole counties, voters had elected Worrell, Wooten said, which suggested they wanted her to handle prosecutions in the circuit court.
Browne argued there was a “carve-out” for the attorney general’s office in death penalty cases.
Wooten disagreed. “I do not read that statute to say you are co-equal with the state attorney,” he said. “I read that statute as to authorize you to assist the state attorney in these capital proceedings.”
Defense lawyers: DNA will be revelatory
The attorney general’s decision to appeal to the Florida Supreme Court raised concerns from death penalty experts and inmate advocates. It also means that Zeigler and Sireci must wait again.
“There’s no conceivable legitimate interest in not getting at the truth,” said Robert Dunham, executive director of the Death Penalty Information Center in Washington, D.C. “It’s a prosecutor’s responsibility to do justice, not to expedite questionable executions.”
Across the country, Dunham said he has seen a pattern of anti-reform attorneys general opposing prosecutors trying to correct injustices in death penalty cases. Cases with similar issues have cropped up, he said, in Missouri and Arizona.
In Sireci’s case, the jury did not unanimously agree to his death sentence. He is reported to have confessed multiple times, but his lawyers say he has always maintained his innocence.
His lawyers want to test a number of items, including a hair on Poteet’s sock that a lab analyst identified as “microscopically identical” to Sireci’s. That science has now been discredited.
In Zeigler’s case, the original judge overrode the jury’s recommendation of life in prison and sentenced him to death. Zeigler’s New York lawyers have argued that forensic scientists would be able to detect the victims’ blood on Zeigler’s clothes if he committed the murders. His father-in-law, Perry Edwards, battled someone throughout the store and was shot and bludgeoned with a metal crank. Edwards’ fingernail scrapings have never been tested.
Zeigler was featured in a Tampa Bay Times series and podcast, Blood and Truth. The Times revealed almost two dozen inmates sent to death row in the 1970s and 1980s had been denied DNA testing, despite a 2001 Florida law meant to give them that right. Nine others, including Zeigler, were allowed DNA tests when the technology was in early development but were later prevented from performing more tests or advanced analysis.
Their appeals for post-conviction DNA tests have been rejected 70 times, or almost three out of every four requests, according to a 2018 Times review of more than 500 death row cases since the death penalty was reinstituted in 1976.
Eight were executed without ever obtaining DNA tests. Nine were convicted partially with “microscopic hair comparison,” the discredited method used in Sireci’s case.
In early 2020, the Florida Legislature considered a change to the DNA testing law, based on Zeigler’s case.
The bill, sponsored by former Rep. James Grant, would have allowed testing where it might only provide evidence of innocence. DNA testing is now granted when it will clearly exonerate, such as in a sexual assault that could point to another rapist. Grant’s legislation passed the Florida House of Representatives unanimously but failed to get picked up in the Senate.