THE FLORIDA SENATE
SPECIAL MASTER ON CLAIM BILLS
Location
409 The Capitol
Mailing Address
404 South Monroe Street
Tallahassee, Florida 32399-1100
(850) 487-5229
DATE COMM ACTION
3/9/23 SM Favorable
3/13/23 JU Pre-Meeting
ACJ
AP
March 9, 2023
The Honorable Kathleen Passidomo
President, The Florida Senate
Suite 409, The Capitol
Tallahassee, Florida 32399-1100
Re: SB 62 – Senator Grall
HB 6005 – Representative Duggan
Relief of Robert Earl DuBoise by the State of Florida
SPECIAL MASTER’S FINAL REPORT
THIS IS AN UNCONTESTED CLAIM FO R $1.85 MILLION TO
BE APPROPRIATED FROM THE GENERAL REVENUE
FUND TO THE DEPARTME NT OF FINANCIAL SERVICES,
AND A WAIVER OF TUITION AND FEES FOR UP TO 120
HOURS OF INSTRUCTION , TO COMPENSATE ROBE RT
EARL DUBOISE FOR 37 YEARS OF WRONGFUL
INCARCERATION.
FINDINGS OF FACT: General Overview of the Crime
On August 18, 1983, the victim left work sometime after 9:05
p.m. The victim was walking and declined a ride home by two
individuals known to her. The victim was not seen again until
her body was found the next morning behind a dentist office.
The body was naked, other than a tube top pulled over the
breasts. The victim suffered severe trauma to the head, face
and neck.
1
The Tampa Police Department responded, secured the
scene, and collected evidence, including several 2x4s
1
Conviction Review Unit Fact Finding, p. 3, (September 9, 2020). SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 2
(suspected to be the murder weapon), clothing, a wallet, a
purse, moldings from potential knee and shoe impressions,
and fingerprints from a nearby air conditioning unit. The crime
scene indicated a struggle, and the autopsy determined the
cause of death was blunt force trauma to the head.
2
The medical examiner, Dr. Miller, discovered what he
believed to be a bite mark on the victim’s left cheek, and
contacted Dr. Powell, a local dentist who worked with the
medical examiner’s office. Photographs were taken and
Dr. Miller excised the bite mark away from the victim’s face
and attempted to preserve it in a formaldehyde solution. Other
evidence was collected, including a rape kit, fluids from the
vaginal and anal cavities, hair samples, nail clippings,
photographs and clothing.
3
The police focused in on the bite mark and contacted
Dr. Richard Souviron, a forensic odontologist. At the time,
Dr. Souviron was considered an expert on bite mark evidence
and had testified in several criminal cases, including the case
against Ted Bundy. Dr. Souviron requested the police to
obtain beeswax impressions from any suspects. Detectives
Saladino and Burke may have obtained as many as 100
separate moldings from male suspects/persons of interest
that lived or frequented the area.
4
A clerk at a gas station near the area the victim was found
stated Robert DuBoise, Victor DuBoise and Raymond Garcia
caused problems in the area. This statement is what led the
police to Robert DuBoise, who voluntarily gave Detective
Saladino a beeswax impression of his teeth. Dr. Souviron
informed the police that Robert DuBoise is who inflicted the
bite mark on the victim, and Robert was arrested.
5
Robert DuBoise was tried and convicted of First Degree
Felony Murder and Attempted Sexual Battery.
6
During the
trial, the state entered evidence by three witnesses who
provided inculpatory evidence against Mr. DuBoise. These
witnesses included Claude Butler (an inmate who claimed Mr.
2
Id.
3
Id.
4
Id. at 4.
5
Id.
6
Id. at 1. SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 3
DuBoise made incriminating statements), and Joan Suarez
and Jack Andrusckiewiecz (acquaintances who claimed
Mr. DuBoise stated he was wanted for murder).
7
The state
also presented expert evidence that Mr. DuBoise was the
person who inflicted the bite mark on the victim.
8
Conviction Review Unit Findings and Recommendation
Teresa Hall, the Supervising Attorney of the Conviction
Review Unit (CRU) for the Office of the State Attorney in the
13
th
Judicial Circuit in Florida,
9
conducted the review of
Mr. DuBoise’s conviction. A CRU is an independent entity
within the Office of the State Attorney that reviews convictions
to determine if the conviction was wrongfully obtained. This
review occurs after the CRU is prompted by a petition or
request for review.
10
Attorney Hall received a comprehensive petition and
memorandum of law regarding Mr. DuBoise’s case from
Susan Friedman, an attorney with the Innocence Project,
representing Mr. DuBoise. Through the petition, attorney Hall
became aware of the bite mark evidence leading to Mr.
DuBoise’s conviction, and testified that she was already
familiar with the unreliability of bite mark evidence as a single
source identifier. This prompted further review of
Mr. DuBoise’s case.
11
The CRU reviewed the entire file on Mr. DuBoise’s case,
including the postconviction motions.
12
The CRU found that:
1) DNA evidence refutes that Robert DuBoise was the
perpetrator. Further, the presumptive positive is linked
to person X., who had no connection to Robert
DuBoise, Victor DuBoise or Raymond Garcia.
2) The bite mark evidence presented to the jury is
unreliable and faulty. Per experts consulted by both the
State Attorney’s Office and the Innocence Project, the
7
Id. at 4.
8
Conviction Review Unit Fact Finding, p. 36, (September 9, 2020).
9
Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 17:14-17:26.
10
Id. at 17:35-18:01.
11
Id. at 30:30-31:31.
12
Id. at 31:31-32:30.
SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 4
marks left on the [victim’s] face were not bite marks at
all.
3) Claude Butler’s testimony is not credible for the
following reasons:
His significant connection to law enforcement.
Inconsistencies through his statements to
police, prosecution, defense at trial, and to the
CRU.
His incentive to cooperate due to facing life
sentences on his pending charges.
Discrepancies on whether Claude Butler was
given a polygraph examination.
There was significant benefit provided to Claude
Butler by the State Attorney’s Office filing a
Motion to Mitigate Claude Butler’s sentence to
time served and that this motion was filed within
2 months of the conclusion of Mr. DuBoise’s
trial.
4) If a trial were to occur today, there would not be
credible evidence to prove Mr. Robert DuBoise
committed the crimes charged and there would be
clear and convincing evidence he is innocent of the
charges against him.
13, 14
Attorney Hall’s recommendation was that Mr. DuBoise’s
conviction be vacated and the charges be nolle prosequi.
15
Bite Mark Evidence
The pathologist thought one of the marks on the victim’s left
cheek was a bite mark. The detectives “honed in” on what the
pathologist, and later dentist, thought was a bite mark. Law
enforcement decided to canvass the area for every known
man that frequented the neighborhood, collecting over 100
bite mark impressions “from anybody that would give it to
them.” Mr. DuBoise voluntarily gave his bite mark impression.
All impressions were done in bees wax.
16
Law enforcement sent some of the dental impressions to
13
Conviction Review Unit Fact Finding, p. 48-49, (September 9, 2020).
14
Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 1:08:54-1:09:50.
15
Id. at 27:35-27:45, and 1:09:50-1:09:58.
16
Id. at 34:33-36:08; Testimony of Robert DuBoise at 2:46:15-2:46:35. SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 5
Dr. Richard Souviron, the forensic odontologist, who
concluded that Mr. DuBoise was the person who inflicted the
injury to the victim’s cheek. Based on this evidence, law
enforcement arrested Mr. DuBoise.
17
At trial, Dr. Souviron
“went above and beyond what should have been testified to,”
when he testified that he was 100 percent certain and
convinced that Mr. DuBoise left the bite mark on the victim.
18
As part of attorney Hall’s review of the case, she attempted to
contact Dr. Souviron 10 times via email, business phone,
personal phone and home phone and never received a
response.
19
Attorney Hall contacted and consulted with Dr. Freeman, an
expert in forensic odontology. Dr. Freeman was sent the case
information, including photographs of the murder weapon and
the injury to the victim’s cheek. Dr. Freeman determined the
mark was not a human bite mark.
20
Dr. Freeman is a forensic odontologist and an expert in the
state of Florida.
21
In 2019, the American Board of Forensic
Odontology (ABFO) rewrote their guidelines and standards for
bite marks.
22
This change in guidelines followed multiple
reports and studies indicating the inaccuracies of bite mark
evidence. One report by the National Academy of Sciences
(NAS) contained a damaging review of bite mark evidence,
finding there was no evidence supporting the accuracy of bite
mark evidence, and experts “diverged wildly,” in their
evaluations of the same bite mark.
23
The premise of bite mark evidence was: (1) that teeth are
individual to a person, similar to DNA or fingerprints; (2) skin
is an accurate recording medium; and (3) people of similar
education and backgrounds would come to similar
conclusions when looking at that evidence.
24
Bite mark
evidence is problematic because it has never been proven
that teeth are individual to a person. In fact, studies have
17
Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 36:04-36:45.
18
Id. at 40:18-40:40.
19
Id. at 49:20-49:35.
20
Id. at 49:50-51:27.
21
Special Master Hearing (March 1, 2021), Testimony of Dr. Freeman at 1:15:08-1:15:26.
22
Id. at 1:18:08-1:19:00.
23
Id. at 1:28:15-1:46:10.
24
Id. at 1:24:00-1:24:44. SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 6
shown when looking at the side of teeth observed in bite mark
evidence, many teeth can be compared and look similar to
others. Further, it has never been proven that skin is an
accurate recording medium. When evaluating bite mark
evidence you are viewing a bruise on the skin, not an actual
indentation. There are no studies to show that everyone
bruises the same way, and skin looks different in different
positions.
25
Forensic odonatologists were originally permitted to testify to
individualization, which means an expert could look at an
injury and determine not only who inflicted that injury, but
determine that the person was the only individual who could
make that injury.
26
Current guidelines are such that a forensic
odontologist may not testify that a specific individual inflicted
a bite.
27
Dr. Freeman first reviewed the transcripts of the case to
determine whether or not Dr. Souviron followed current or past
ABFO guidelines. The evidence originally collected included
low quality photos, and a portion of skin excised from the
victim. While there is controversy regarding collecting bite
mark evidence by excising an area of skin, there were
procedures for doing so that were not followed in this case.
The way in which the skin was excised in Mr. DuBoise’s case
distorted the injury and caused shrinkage. The injury was also
preserved in formaldehyde which was not recommended and
causes distortion. The way in which the injury was excised
and preserved was not consistent with collection and
preservation standards in place at the time of the crime.
28
Similarly, proper methods for taking dental impressions were
not followed in Mr. DuBoise’s case. The officers were not
trained in taking impressions nor did they use quality
materials. Law enforcement used beeswax to take dental
impressions, then “pour[ed] up” each side in dental plaster.
This is not an acceptable method to record an impression. The
wax deforms in a way dental impression material does not.
The analysis on Mr. DuBoise case was done based on the
dental impressions in beeswax taken by law enforcement.
29
25
Id. at 1:46:24-1:49:45.
26
Id. at 1:25:09-1:25:39.
27
Id. at 1:46:05-1:46:20.
28
Id. at 1:49:50-1:53:47.
29
Id. at 1:53:50-1:59:31. SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 7
Once the dental plaster had set in Mr. DuBoise’s dental
impression, it was sent to Dr. Souviron.
30
Dr. Souviron’s
interpretation of the evidence evolved and became
increasingly more conclusive. Dr. Souviron’s conclusion
based on the resected tissue analysis was originally that the
person who made this injury was likely missing an upper tooth.
Mr. DuBoise had no missing teeth at the time of the
impression. After being presented with Mr. DuBoise’s dental
impression, Dr.’s Souviron abandoned the missing tooth
theory.
31
Dr. Souviron concluded early in the case that he
could not exclude Mr. DuBoise. Later he stated that
Mr. DuBoise was consistent with the injury. He then stated
that Mr. DuBoise’s dentition matched to a reasonable degree
of certainty. Finally, Dr. Souviron concluded at trial, that
Mr. DuBoise did inflict the injury on the victim in this case.
32
While this testimony was permissible at the time, a forensic
odontologist is no longer permitted to make this conclusion,
and individualization is no longer permitted per the current
ABFO standards and guidelines.
33
Dr. Freeman reviewed the photographs of the injury in Mr.
DuBoise’s case and concluded that the injury to the victim’s
cheek was not a bite mark. The average lower dentition of a
human is approximately 32 millimeters from canine to canine.
In this case, the injury on the victim’s face was 45 millimeters.
Additionally, the injury that had been excised had visible
distortion. Dr. Freeman further testified that Dr. Souviron’s
analysis was “wrong” and that his conclusions were “far-field
of having any scientific validity.”
34
Physical Evidence Excluding Mr. DuBoise
The medical examiner collected evidence at the autopsy,
including the excised skin of the left cheek containing the
alleged bite mark, hair samples, oral, anal, and vaginal smear
slides, fingernail clippings, and the victim’s blood type. The
oral, anal, and vaginal smear slides collected are the same as
30
Id. at 1:59:40-2:0015.
31
Id. at 2:01:04-2:04:35.
32
Id. at 2:07:38-2:09:29.
33
Id. at 2:09:50-2:10:21.
34
Id. at 2:11:19-2:13:50. SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 8
the type of slides collected in a rape kit today.
35
At the time of
the crime in 1983, DNA testing was not available.
36
Law enforcement collected fingerprints, 2x4s suspected to be
the murder weapon, and hair from the crime scene.
37
All
evidence collected at the scene, including the fingerprints and
hair, excluded Mr. DuBoise.
38
Throughout Attorney Hall’s review of Mr. DuBoise’s case, it
was determined that the medical examiner’s office had oral,
anal, and vaginal smear slides collected from the victim at the
time of the autopsy. The slides were sent to a lab in California
for testing.
39
Nancy Wilson, a Forensic DNA Analyst with Forensic
Analytical Crime Lab in California, was contacted to review
the DNA slides found in the medical examiner’s possession in
Mr. DuBoise’s case. Wilson’s responsibilities include
examining and documenting evidence. Wilson performs any
necessary testing, including DNA testing, and provides
interpretation for the results. Wilson has been recognized as
an expert in Florida.
40
Wilson received the evidence in this case in August 2020,
tested the oral, anal, and vaginal smear slides, and completed
her report in September 2020. Wilson observed sperm on the
vaginal smear slide and anal smear slide. Wilson concluded
there was one major male contributor (76% of the DNA), one
minor male contributor (5% of the DNA), and the victim (19%
of the DNA) on the vaginal smear slide, and a small amount
of sperm DNA from one contributor on the anal smear slide.
There was no male DNA on the oral smear slide. Wilson
received a DNA reference sample from Mr. DuBoise and was
able to compare and exclude him as a possible contributor.
41
Once Wilson completed her report, it was submitted to
CODIS.
42
Mr. DuBoise was excluded as a match from all the
35
Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 37:01-37:55.
36
Id. at 34:20-34:30; Testimony of Nancy Wilson at 2:22:41-2:22:57.
37
Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 37:55-38:45.
38
Id. at 39:31-39:58 and 51:50-1:00:04.
39
Id. at 53:50-57:15.
40
Special Master Hearing (March 1, 2021), Testimony of Nancy Wilson at 2:15:26-2:22:23.
41
Id. at 1:26:58-2:38:48; see also Forensic Analytical Crime Lab, Laboratory Report (September 2, 2020).
42
CODIS is the Combined DNA Index System and is the generic term used to describe the FBI’s program of
support for criminal justice DNA databases as well as the software used to run these databases. SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 9
evidence tested in this case, and there was a positive match
to the major contributor of the DNA. At the time of the Special
Master hearing the name of the individual whose DNA
matched the sample retrieved from the victim was not
released because there was an ongoing investigation. There
is no connection between Mr. DuBoise and the person who
was a DNA match.
43, 44
During 2022, the State Attorney’s
Office for the Thirteenth Judicial Circuit publicly identified two
individuals whose DNA match the DNA found on the rape kit
of the victim. These two individuals are currently incarcerated
on life sentences for a similar crime that occurred near the
time of the rape and murder for which Mr. DuBoise was
convicted. Additionally, these two individuals are connected to
other similar crimes in the Tampa Bay area.
45
Witnesses
Claude Butler
Witness Claude Butler had no independent knowledge of the
crime. Butler testified that he shared a jail cell with Mr.
DuBoise, and that Mr. DuBoise told him that Mr. DuBoise, his
brother Victor DuBoise, and Raymond Garcia abducted the
victim, raped her, and killed her. Butler further testified that
Mr. DuBoise stated all he had done “is had sex with the
woman,” and he did not know anyone was going to kill the
victim. Butler testified Raymond Garcia actually committed the
murder. Butler testified to details about the crime could have
been found in the arrest report.
46
Attorney Hall interviewed Butler as part of her investigation
and Butler’s recall of what Mr. DuBoise told him was
inconsistent with his trial testimony. Butler had previously
provided information on other crimes during the same time
period to a detective with the Tampa Police Department. Prior
to Mr. DuBoise’s trial, Butler was charged with several
punishable by life felonies. At the time of sentencing, Butler
received a 5-year sentence. After the conviction of
Mr. DuBoise, the state attorney who tried Mr. DuBoise’s case
filed a State motion to modify and mitigate Butler’s sentence.
Butler was sentenced to time served. He served
43
Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 53:50-57:15.
44
Special Master Hearing (March 1, 2021), Testimony of Nancy Wilson at 2:38:48-2:42:00.
45
See, Innocence Project of Florida, Inc. Status Update of Claimant Since 2022 Legislative Session (2023).
46
Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 41:29-42:26. SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 10
approximately 18 months incarceration on multiple punishable
by life felonies.
47
Jack Audrusckiewiecz
Witness Jack Audrusckiewiecz had no independent
knowledge of the crime. Audrusckiewiecz testified that he
spoke with Mr. DuBoise at a party two days to a week before
Mr. DuBoise’s arrest. He further testified that Mr. DuBoise
stated he was wanted for murder.
48
Joan Suarez
Witness Joan Suarez had no independent knowledge of the
crime. Suarez testified that she frequented the same bar as
Mr. DuBoise and they were friends. She further testified that
Mr. DuBoise had scratches to his back, and that Mr. DuBoise
made comments that he had “done something bad,” and “was
wanted.” Suarez could not remember dates, exact
conversations, and admitted to having a traumatic brain injury.
Suarez’s trial testimony was inconsistent with the deposition
she had given prior to trial.
49
Sentencing and Post-Conviction
Mr. DuBoise was arrested on October 22, 1983.
50
The jury
returned a guilty verdict on First Degree Felony Murder and
Attempted Sexual Battery on March 7, 1985.
51
The jury did not recommend the death penalty, but the court
overrode the jury’s decision and sentenced Mr. DuBoise to
death on March 7, 1985.
52
During Mr. DuBoise’s direct appeal
the Florida Supreme Court found that the trial court made a
sentencing error, and overturned Mr. DuBoise’s death
sentence. The sentence of death was commuted to a life
sentence on June 23, 1988.
53
47
Id. at 1:00:50-1:03:49.
48
Id. at 45:52-43:48.
49
Id. at 43:55-45:09.
50
Special Master Hearing (March 1, 2021), Testimony of Robert DuBoise at 2:46:40-2:47:26.
51
Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 45:10-45:30.
52
State v. Robert E. DuBoise, Order Granting Joint Motion to Modify Sentence, (August 27, 2020) (Case
No.83CF12669)
53
Id.; See also, Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 45:30-46:11. SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 11
Mr. DuBoise filed a postconviction motion requesting to test
the DNA collected in the case. At the hearing on this
postconviction motion it was determined that the evidence
entered at trial had been destroyed by the Clerk’s office in
1990 and the hair samples were not suitable for DNA
testing.
54
Attorney Hall later determined that the medical
examiner’s office stored DNA slides in Mr. DuBoise’s case,
and these were tested during the CRU’s investigation.
55
In 2020, due to Covid-19, no prison inmates were able to be
transported to Hillsborough County jail for the purpose of a
hearing. Because of this, and upon receiving the DNA results
excluding Mr. DuBoise, attorney Hall elected to file a motion
to modify Mr. DuBoise’s sentence so he may be released.
Mr. DuBoise’s sentence was commuted to time served, and
Mr. DuBoise was released.
56
The court ordered that Mr.
Duboise’s sentence be modified as follows:
Count 1: Modified to 36 years in the Department of
Corrections.
Count 2: Modified to 15 years in the Department of
Corrections.
Counts 1 and 2 were to run concurrently.
Mr. DuBoise was given 503 days of original jail credit,
as well as all credit for prison time served.
All fines associated with the case were waived.
57
Once Mr. DuBoise was released the hearing on
postconviction relief to vacate his sentence was held.
58
In the State’s response to the postconviction motion seeking
vacatur, the State agreed that the convictions should be
vacated.
59
On September 14
th
, 2020, the court granted Mr.
DuBoise’s motion to vacate his conviction, finding there
was no credible evidence that Mr. DuBoise committed the
54
Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 46:20- 47:30.
55
Id. at 53:50-57:15.
56
State v. Robert E. DuBoise, Order Granting Joint Motion to Modify Sentence, (August 27, 2020) (Case
No.83CF12669); See also, Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 1:04:30-1:05:15.
57
State v. Robert E. DuBoise, Order Granting Joint Motion to Modify Sentence, (August 27, 2020) (Case
No.83CF12669)
58
Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 1:05:40-1:08:54.
59
State v. Robert E. DuBoise, State’s Response to Defendant’s Motion for Postconviction Relief and to Vacate
Judgment and Sentence Pursuit to Fla. R. Crim P. 3.850 (September, 2020) (Case No.83CF12669). SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 12
crime and further found that he was innocent by clear and
convincing evidence.
60
LITIGATION HISTORY: Mr. DuBoise convicted of First Degree Felony Murder and
Attempted Sexual Battery on March 7, 1985,
61
And
sentenced Mr. DuBoise to death on March 7, 1985.
62
The sentence of death was commuted to a life sentence on
June 23, 1988.
63
Mr. DuBoise filed a postconviction motion requesting to test
the DNA collected in the case, which was initially denied. The
DNA was later tested during the CRU’s investigation.
64
In 2020, based on the DNA results, attorney Hall filed a motion
to modify Mr. DuBoise’s sentence so that he may be released.
Mr. DuBoise’s sentence was commuted to time served, and
Mr. DuBoise was released.
65
Once Mr. DuBoise was
released, the hearing on postconviction relief to vacate his
sentence was held.
66
On September 14
th
, 2020, the court vacated Mr. DuBoise’s
conviction, finding there was no credible evidence that Mr.
DuBoise committed the crime and further found that he was
innocent by clear and convincing evidence.
67
On October 4, 2021, Mr. DuBoise, through private counsel,
filed a federal civil rights action against the City of Tampa and
several employees of the Tampa Police Department. The
federal District Court denied the defendants’ motion to dismiss
and the case is currently pending in the discovery phase.
68
60
State v. Robert E. DuBoise, Order Vacating Defendant’s Judgment and Sentences (September 14th, 2020)
(Case No.83CF12669); see also, Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 1:11:00-
1:11:59.
61
Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 45:10-45:30.
62
State v. Robert E. DuBoise, Order Granting Joint Motion to Modify Sentence, (August 27, 2020) (Case
No.83CF12669)
63
Id.; See also, Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 45:30-46:11.
64
Id. at 53:50-57:15.
65
State v. Robert E. DuBoise, Order Granting Joint Motion to Modify Sentence, (August 27, 2020) (Case
No.83CF12669); See also, Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 1:04:30-1:05:15.
66
Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 1:05:40-1:08:54.
67
State v. Robert E. DuBoise, Order Vacating Defendant’s Judgment and Sentences (September 14th, 2020)
(Case No.83CF12669); see also, Special Master Hearing (March 1, 2021), Testimony of Teresa Hall at 1:11:00-
1:11:59.
68
See, Innocence Project of Florida, Inc. Status Update of Claimant Since 2022 Legislative Session (2023). SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 13
CONCLUSIONS OF LAW: Standard of Proof in Wrongful Incarceration
Compensation Claims
The appropriate standard of proof applied in a wrongful
incarceration claim bill is whether there is clear and convincing
evidence that the claimant committed neither the act nor the
offense that served as the basis for the conviction and that the
petitioner did not aid, abet, or act as an accomplice.
Generally, the standard of proof in the claim bill process is
preponderance of the evidence. However, in 2008, the
Legislature established a clear and convincing standard of
proof for wrongful incarceration claims under ch. 961, F.S.
While the Legislature is not bound to the statutory
requirements of ch. 961, F.S., precedent
69
and equitability
suggest that the applicable standard of proof in a wrongful
incarceration claim bill should be consistent with these
statutory requirements. There have been two wrongful
incarceration claim bills that have passed since the enactment
of ch. 961, F.S. Both of these bills have utilized a clear and
convincing standard.
70
Additionally, a person who is barred
from receiving compensation under ch. 961, F.S., due to prior
felony convictions may only be compensated for a wrongful
conviction through an act of grace by the Legislature. Applying
a lower standard of proof to those barred from statutory relief
creates an inequitable result.
Clear and convincing evidence is “evidence making the truth
of the facts asserted ‘highly probable.”
71
A clear and
convincing standard “is a greater burden than preponderance
of the evidence, the standard applied in most civil trials, but
less than evidence beyond a reasonable doubt, the norm for
criminal trials.”
72
Florida jury instructions provide that clear
and convincing evidence is “evidence that is precise, explicit,
lacking in confusion, and of such weight that it produces a firm
69
Senate Special Master Report Re: CS/SB 2 (2012)(November 1, 2011)(recommending relief regarding Mr.
William Dillon’s wrongful incarceration claim); Senate Special Master Report Re: SB 28 (2020)(January 23,
2020)(recommending relief regarding Mr. Clifford Williams’ wrongful incarceration claim).
70
Id.
71
Slomowitz v. Walker, 429 So. 2d 797, 799 (4th DCA 1983).
72
Bryan A. Garner, Black’s Law Dictionary (2006). SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 14
belief or conviction, without hesitation, about the matter in
issue.”
73
Compensation for Wrongful Incarceration Compensation
Claims
Chapter 961, F.S., provides compensation for wrongful
incarceration calculated at a rate of $50,000 for each year of
wrongful incarceration, which is prorated as necessary.
74
Additionally, a petitioner may receive a waiver of tuition and
fees for up to 120 hours of instruction at a career center,
Florida College System Institution, or any state university;
75
the amount of any fine, penalty, or court costs imposed and
paid by the wrongfully incarcerated person;
76
and the amount
of reasonable attorney’s fees and expenses incurred by the
wrongfully incarcerated person.
77
The total amount awarded
may not exceed $2 million.
78
Similar to the standard of proof, the Legislature is not bound
by the statutory requirements of ch. 961, F.S., but precedent
and equitability suggest these requirements be applied.
Conclusion Based upon Findings of Fact and Clear and
Convincing Evidence
The DNA evidence demonstrates Mr. DuBoise was not the
perpetrator. The oral, anal, and vaginal smear slides
contained DNA obtained from the victim’s body. This evidence
was only recently discovered and examined through the
CRU’s investigation into Mr. DuBoise’s case. Mr. DuBoise’s
DNA was compared and excluded as a match to the DNA
found on each of the smear slides. Not only was Mr. DuBoise
excluded as a match, a match to the DNA was found after the
DNA was submitted to CODIS. While the name of the match
was unknown to the public at the time of the hearing, there
was an ongoing investigation and the person has no
connection to Mr. DuBoise, Victor DuBoise, or Raymond
Garcia.
73
Standard Jury Instructions-Civil (No. 405.4).
74
Section 961.06(1)(a), F.S.
75
Section 961.06(1)(b), F.S.
76
Section 961.06(1)(c), F.S.
77
Section 961.06(1)(d), F.S.
78
Section 961.06(1), F.S. SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 15
Further, all other evidence collected at the scene and
presented at trial excluded Mr. DuBoise.
The bite mark evidence presented at trial is unreliable and
inaccurate. The injury to the victim’s cheek was not a bite
mark, and was much larger than a human bite mark. The
analysis and conclusions made by Dr. Souviron are
inconsistent with current standards regarding bite mark
evidence. Dr. Souviron first theorized that the biter was
missing an upper tooth. When presented with Mr. DuBoise’s
dental impression, Dr. Souviron abandoned this theory. Dr.
Souviron ultimately testified that Mr. DuBoise was the biter.
This testimony would not be permitted by the ABFO standards
today. Further, the process used to document and preserve
the bite mark was faulty. The bite mark was excised and
preserved in formaldehyde which caused distortion and
shrinkage. Similarly, the process to collect dental impressions
was also faulty. Beeswax was used, which does not take a
proper impression and may distort when dental plaster is
poured in. The dental impressions were taken by law
enforcement and not by trained professionals.
The witnesses providing testimony against Mr. DuBoise were
not credible. Claude Butler had no independent knowledge of
the crime, and received a significant benefit by the assistant
state attorney mitigating his sentence to time served.
Similarly, witnesses Jack Audrusckiewiecz and Joan Suarez
had no independent knowledge of the crime. Their testimony
lacked substance, was inconsistent and not credible.
The materials presented did not include any substantiated
evidence with regard to Mr. DuBoise being involved in the
crime. Therefore, given the evidence provided during the
claim bill process, which included:
Testimony from Teresa Hall, the Supervising Attorney
of the CRU for the Office of the State Attorney in the
13
th
Judicial Circuit in Florida;
Testimony from Dr. Adam Freeman, a forensic
odontologist.
Testimony from Nancy Wilson, a Forensic DNA Analyst
with Forensic Analytical Crime Lab in California;
Testimony from Robert Earl DuBoise;
CRU Fact Finding Report; SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 16
Defendant’s Motion for Postconviction Relief and to
Vacate Judgement and Sentence Pursuant to Fla. R.
Crim P. 3.850;
State’s Response to Defendant’s Motion for
Postconviction Relief and to Vacate Judgment and
Sentence Pursuant to Fla. R. Crim. P. 3.850;
Order Vacating Defendant’s Judgment and Sentences
(September 14, 2020);
Forensic Analytical Crime Laboratory Reports;
Sworn Affidavit of Dr. Adam Freeman, Board Certified
Forensic Odontologist;
Supplemental Exhibit, DuBoise Priors;
Supplemental Exhibit, Is it a Human Bitemark Table;
and
Supplemental Exhibit, State v. Robert DuBoise, 83-CF-
12669, Agreed Order to Modify Sentence,
the undersigned finds the claimant has demonstrated actual
innocence by clear and convincing evidence.
The claimant was wrongfully incarcerated for 37 years.
79
The
amount of $1,850,000, calculated at the rate of $50,000 per
year is reasonable.
ATTORNEY FEES:
This bill does not allocate any funds for attorney or lobbying
fees. Additionally, the claimant’s attorney’s submitted a
Statement on Payment for Attorney and Lobbying Services,
stating the claimant had retained attorney Seth Miller of the
Innocence Project of Florida, to represent him during the
Special Master portion of the Claim Bill Process. The claimant
has retained attorneys Mark Delegal and Larry Sellers to
perform legislative advocacy regarding passage of the claim
bill. None of the aforementioned individuals are receiving any
form of payment or compensation, and all representation is
pro bono.
80
RECOMMENDATIONS: Based upon the evidence submitted prior to and during the
special master hearing, the undersigned finds the claimant
has demonstrated actual innocence by clear and convincing
79
Mr. DuBoise was arrested on October 22, 1983 and released from the Department of Corrections on August 27,
2020. Mr. DuBoise spent 36 years, 10 months and 5 days wrongfully incarcerated.
80
See, Innocence Project of Florida, Inc. Statement on Payment for Attorney and Lobbying Services (2023). SPECIAL MASTER’S FINAL REPORT – SB 62
March 9, 2023
Page 17
evidence. There is clear and convincing evidence that the
claimant committed neither the act nor the offense that
served as the basis for the conviction and that the petitioner
did not aid, abet, or act as an accomplice, and the relief
sought is reasonable. Based upon the foregoing, the
undersigned recommends SB 62 be reported FAVORABLY.
Respectfully submitted,
Amanda Stokes
Senate Special Master
cc: Secretary of the Senate