Former Death Penalty Prosecutors Urge Florida Supreme Court to Reverse Conviction of Man on Death Row Based on DNA Evidence Pointing to Alternate Suspect

07.17.14 By Innocence Staff

Tallahassee, FL; July 17, 2014 – Attorneys who served as prosecutors or government appellate attorneys have filed a friend-of-the-court brief today urging the Florida Supreme Court to reverse the capital murder convictions of Clemente Aguirre based on DNA and other evidence pointing to an alternate suspect. In the brief, the lawyers — all of whom have sought or defended the death penalty in a multitude of cases — argue that it would undermine the legitimacy of justice system to deny Aguirre a new trial in light of the strong DNA evidence pointing to his innocence. The lawyers also contend that the inadequate representation that Aguirre received at trial entitles him to a new trial.

“Regardless of where you stand on the death penalty – and I count myself a supporter – no one supports the execution of someone who could well be innocent,” said Kevin Newsom, co-counsel for Mr. Aguirre and a partner at the law firm of Bradley Arant Boult Cummings. Newsom and his colleague Lindsey Boney – both of whom joined Aguirre’s defense team in 2013 after new DNA evidence came to light – continued, “Mr. Aguirre has steadfastly maintained his innocence, and even testified in his own defense, but his trial lawyers never did any forensic testing to corroborate his account. Particularly in light of such compelling new DNA evidence, we hope the Florida Supreme Court will see that he deserves a genuine opportunity to prove his innocence before the ultimate punishment is imposed.” Newsom served as the Solicitor General of Alabama from 2003 to 2007, in which capacity he repeatedly defended the state’s use of the death penalty.

The 14 lawyers who signed the friend-of-the-court brief include former prosecutor and Florida Supreme Court Justice The Honorable Gerald Kogan; former Texas Governor and Attorney General Mark White; former Ohio Attorney General Jim Petro; former Tennessee Attorney General W.J. Michael Cody; former Virginia Attorneys General Mark Earley, Anthony Troy, Stephen Rosenthal and Richard Cullen; former U.S. Deputy Attorney General David Ogden; former Florida Assistant Attorney General Bruce Jacob; former Florida State Attorney Harry Shorstein; former New York Special Assistant Attorney Gerneral Bennett Gershman; former Los Angeles District Attorney John Van De Kamp; and Bexar Country, Texas District Attorney Sam Millsap.

“We’re grateful that so many distinguished attorneys who are so well versed in capital murder prosecutions have come forward to support Mr. Aguirre’s efforts to clear his name,” said Nina Morrison, a Senior Staff Attorney with the Innocence Project, which is affiliated with Cardozo School of Law. “We’re hopeful that the Florida Supreme Court will acknowledge that it would be fundamentally unfair to execute Mr. Aguirre when there is so much evidence pointing to his innocence, none of which a jury has ever heard,” added Maria DeLiberato, Aguirre’s co-counsel with the Capital Collateral Regional Counsel – Middle Region.

Aguirre has been on Florida’s death row since 2006 for the murders of Cheryl Williams and Carol Bareis, who were found stabbed to death in their trailer in Seminole County on June 17, 2004. An undocumented Honduran with no criminal record, Aguirre initially told the police that he didn’t know anything about the murders. Later the same day, however, he asked to speak with police again and admitted that he had gone to their home at approximately 6:00 a.m. that morning and saw that the two women had been stabbed to death. After discovering William’s body in the doorway of the trailer, he picked up the knife near her body because he was afraid the killer was still present. After discovering Bareis had been murdered too, he panicked, threw the knife into the yard, and went home to his neighboring trailer.

At trial, the prosecution presented the limited DNA evidence tested in the case to show that Williams’s blood was on Aguirre’s clothes (which he voluntarily turned over to the police) and shoes and that his fingerprint was on the knife. However, neither the prosecution nor the defense conducted testing on any of the more than 150 bloodstains that were photographed and swabbed from the crime scene. Aguirre’s lawyer didn’t even view, much less retain a forensic expert to examine, any of the 197 items of evidence that were collected in this case. Even though the evidence was consistent with Aguirre’s version of events, which he testified to at trial, he was convicted and sentenced to death.

In August 2011, Aguirre’s new counsel at the Capital Collateral Regional Counsel – Middle Region, in consultation with the Innocence Project, sought DNA testing of some of the previously-untested evidence. None of the testing of more than 84 items matched Aguirre. Most matched to the two victims, but there were two bloodstains that were identified as coming from Williams’ daughter (and Bareis’ granddaughter) Samantha Williams. Armed with this evidence, the legal team sought to test the remainder of the evidence. Again none of the stains were from Aguirre, but another six were identified as Samantha’s. Samantha’s eight bloodstains were spread out over four rooms, and each was near blood found from one of the victims.

At a hearing in May 2013, Aguirre’s lawyers presented additional evidence tending to inculpate Samantha, including testimony from a crime-scene expert that the bloodstains now known to be Samantha’s were “fresh” at the time they were photographed after the murders, and that the pattern of the bloodstains on Aguirre’s clothing show they could not have been worn by the real killer. Attorneys also introduced evidence that Samantha has made multiple statements (one of which was captured on police video) suggesting her own culpability for murders and that Samantha and her mother had a troubled relationship and a heated argument the night of the murders.

The circuit court judge declined to reverse Aguirre’s conviction, and his legal team has appealed that decision to the Florida Supreme Court. Copies of the friend-of-the-court brief, which was prepared by Barry Richard and Elliot Scherker of Greenberg Traurig LLP and Karen Gottlieb, Esq., and the brief filed by Aguirre’s legal team, are available here:

Aguirre is represented by Maria DeLiberato and Julissa Fontan with the Capital Collateral Regional Counsel – Middle Region in Tampa; Kevin Newsom and Lindsey Boney of Bradley Arant Boult Cummings in Birmingham, AL; Marie-Louise Samuels Parmer of Tampa; and Nina Morrison and Barry Scheck of the Innocence Project.

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