This issue of the Stetson Law Review is co-sponsored by the Center for Excellence in Advocacy at Stetson University College of Law.’ Stetson takes great pride in training students not only to think like lawyers, but also to advocate like lawyers. Additionally, Stetson takes seriously its responsibility to help promote the high standards of the legal profession through continuing legal education. With this symposium issue, Stetson continues its commitment to train and assist students and lawyers to professionally and effectively litigate for their clients.

When John Spinkelink was executed on May 25, 1979, death-penalty advocates were satisfied that Florida’s statutory death-penalty scheme was constitutionally bulletproof. After all, the proponents of the new scheme had read the tea leaves provided in the Furman v. Georgia decision, and the protections against arbitrary application of the death penalty contained in the scheme addressed all of the conflicting concerns that the majority Justices expressed in their individual opinions. The new scheme was lauded by the Florida Legislature and the bench. With obvious self-satisfaction, the Florida Supreme Court approved the scheme and stated, “Thus the inflamed emotions of jurors can no longer sentence a man to die; the sentence is viewed in the light of judicial experience.”

We live in an amazing time. Advances in medicine and technology have given doctors the power to save lives that would almost certainly have been lost in the past. But such advances in life-saving techniques have their downsides as well. As numerous courts have recognized, doctors now have the power to preserve life—or at least the physiological attributes of life—past the point at which many of us would care to live. As medical professionals’ ability to preserve life increases, so do conflicts concerning whether such treatment should be rendered. The litigants in such contests include family members, medical institutions, the person whose possible death is at issue, the state, and occasionally, even total strangers. The task of making decisions in these contests often falls to judges. These contests at the twilight of life and death, and the roles that various actors in the legal system take in resolving them, are the subject of this Article.

Over the course of nearly three decades, the Florida Evidence Code has stood as a success story in the sometimes uneasy relationship
between the courts and the legislature. The Florida Legislature enacted the code in 1976, and since then has passed changes that, until recently, were adopted by the Florida Supreme Court without controversy as rules of procedure. Thus, there was never any need for a court to consider the question of whether a given change was substantive or procedural: so long as the Florida Supreme Court adopted the change, it simply did not matter.

I’m sorry I’m not going to talk exactly on the topic. It’s not litigation ethics that I want to address tonight, but it is ethics, and it is ethics that applies to litigators. It’s also ethics that applies to all lawyers, and I submit it applies to all clients. So, if there are any nonlawyers in this room, I hope you’ll pay attention because there’s a lot more at stake for you in what I’m about to discuss than there is even for the lawyers.

DNA evidence has exonerated over 140 wrongly convicted capital defendants in the United States. Just as DNA is often effective in providing a remedy to the wrongly accused, it is also an extremely powerful resource for law enforcement. At first blush, this may appear to be a “win-win” scenario for all concerned (except, of course, for defendants who are actually guilty), but the expanding use of DNA evidence, particularly in cases involving DNA databanking, has met substantial resistance on the civil-liberties front. When examining the privacy implications involved with DNA sampling, it is enlightening to compare constitutional analyses of two DNA databanks—one from convicted criminals and a similar sampling required of members of the United States Armed Forces.

J.D.S. is a twenty-three-year-old woman with the mental capacity of a young child, living in Orlando, Florida. She suffers from “severe mental retardation, cerebral palsy, autism, and [a] seizure disorder.” She cannot communicate and requires complete assistance in all her daily activities. When J.D.S. was a child, her family abandoned her, and she has lived most of her life since that time in a state-licensed group home in southwest Orlando.