NEWS REPORT: DNA Testing on Hair Could Have Proved Innocence But Trial Attorney Refused Testing Due to . . . Cost?

Esdras Cardona was recently convicted of sexual battery for the April 2006 rape of a pastry chef at the exclusive Everglades Club in Palm Beach, Florida. The evidence central to the prosecution's case was the witness ID of Cardona, the perpetrator's t-shirt found at the scene which was the same brand and type of shirt found in Cardona's bedroom, and a toothbrush found at the scene that did not belong to the victim and contained DNA which was miraculously consistent with that of Cardona. The case is chronocoled in this Palm Beach Post story.

One would expect prosecutors, eager to obtain a conviction, to want to skip over additional scientific testing that could yield probative evidence of guilt or innocence. The prosecutors went to trial thinking (and were correct) that they had enough evidence to score a conviction of Mr. Cardona without testing the two hairs with roots collected from the perpetrator's t-shirt:

Former Assistant State Attorney Ron Herman handled the case in the months before Cardona's trial. Herman said he was confident in the evidence he had: a rape victim's strong eyewitness ID of Cardona and his toothbrush found at the scene. "I thought it was solid to support a conviction," Herman said. Hairs from the bed and T-shirt - they were a gamble. If none belonged to Cardona, it would not point-blank exonerate him, Herman says. And it may have mucked up the prosecution's case against him. Besides, Herman knew Cardona's defense team had asked to have the hairs tested at a private DNA lab - an effort he did not oppose.

So if the prosecutor doesn't DNA test the hairs and his rationalization is that a result excluding Cardona as the contributor of those hairs would seriously muck up the prosecution's case, possibly raising enough reasonable doubt to support an acquittal, any defense attorney, paid in excess of $25,000 to represent Cardona, would surely obtain the testing? Right?:

In the months after Cardona's arrest in April 2006, the attorneys began their work, deposing witnesses, Amezaga's flying to Maine to take the victim's statement. In January 2007, Amezaga asked Circuit Judge William Berger to allow the defense to test the hairs at a private lab in Broward County, which the judge did. Amezaga said then Cardona's family would pay for the testing. Then their money ran out.

When a person who has paid a private lawyer runs out of money, he can have the state cover some basic costs by being declared "indigent for due process." Taxpayers then pay for the critical elements every defense deserves, including forensic testing and experts. The money is paid by the Justice Administrative Commission, an agency in Tallahassee that monitors requests.

. . .

In February, Amezaga received an invoice from the private Broward lab for the DNA testing. It cost a small fortune - $575 per hair, $350 per hour to review a case and $2,800 per day for expert testimony. Way in excess of what the JAC was willing to pay. In late April, Cardona's attorney returned to court and told [the judge] . . . that testing cost much more than the caps on costs allowed. . . . The commission, though, follows court orders from judges. And at that two-minute hearing in late April, Berger gave Cardona a critical ruling: "I find extraordinary circumstances and a need to have this particular lab engaged," the judge said. "Therefore the cap ... this will exceed it if necessary."

It seems that Mr. Cardona is in a great position to get his testing. What's more, is that these hairs have roots which makes DNA testing easier and implies that the hairs were forcefully removed (i.e. through a struggle), rather than deposited on the white t-shirt through casual contact or transference. So Mr. Zealous Defense Attorney took the judge's order for extraordinary costs to the JAC, right?

Well not so much:

Yet no test on the hairs in Cardona's case was ever done. Amezaga said it was not a strategic decision not to test the hairs; it was a financial one. He was unable to square the $6,000 cost of tests with what the state was willing to pay, he said.

But why was that? Berger had ruled Amezaga could exceed caps and spend more to get the hairs tested. The attorney looks taken aback when asked about this and refuses to say why. "You can draw your own conclusions about that," Amezaga said.

Just before Cardona's trial began in June, he met with Amezaga. That's when Cardona learned the hair evidence in his case had not been tested. Amezaga said the best legal advice he could give was for Cardona to fire him and get the public defender's office to represent him. That office, presumably, would be able to pay for the testing. Then the tens of thousands of dollars Cardona and his family had paid the attorney might all be for naught.

So Cardona went to trial [without the DNA testing and was convicted].

No one can truly know whether the toothbrush was planted at the crime scene or whether Esdras Cardona is innocent. But there is little question whether he deserved a better, more zealous, defense. His case is now in the hands of the West Palm Beach public defender and it is likely he gets his testing on appeal or in post-conviction.

As for Mr. Amezaga, he will likely be the subject of a non-frivolous claim of ineffective assistance of counsel, where he won't be able to sidestep the question of why he didn't get the DNA testing, when he had a judge's order allowing for the full expense of that testing to be paid by the State.