Law School professor, students prove incarcerated man innocent

Legal eagles: From left, Lauren Van Buren, Leticia Mora, Crag Trocino, Jillian Kushner, and Tori Simkovic. Photo: Diego Meza-Valdes/University of Miami
By Robert C. Jones Jr.

Legal eagles: From left, Lauren Van Buren, Leticia Mora, Crag Trocino, Jillian Kushner, and Tori Simkovic. Photo: Diego Meza-Valdes/University of Miami

Law School professor, students prove incarcerated man innocent

By Robert C. Jones Jr.
Wrongfully convicted of armed robbery in a court of law eight years ago, Dustin Duty is now a free man, thanks to the efforts of the University of Miami School of Law’s Innocence Clinic.

In the first hour of his newfound freedom, Dustin Shane Duty consumed half of a double bacon cheeseburger while sitting in the restaurant of a Jacksonville, Florida, hotel. Then, he borrowed his attorney’s cellphone to call the mother he hadn’t seen in more than eight years.

“I love you, Dottie,” Duty told his weeping mom.

The last time they spoke, he was in a Florida prison, serving a 20-year sentence for an armed robbery for which he had always maintained his innocence.

Now, after more than eight years behind bars, he was a free man, prosecutors deciding not to retry him after an appellate court overturned his conviction.

Duty’s journey to exoneration was filled with roadblocks, some so formidable that the 37-year-old often feared that his dream of walking free would die on a courtroom floor.

But a University of Miami School of Law professor and his passionate students never gave up on him, filing various motions over the past five years that exposed just how egregious his conviction was—one achieved through a faulty eyewitness identification, a dearth of evidence, and a defense lawyer who failed his client at every turn.

“This means a lot,” Craig Trocino, director of Miami Law’s Innocence Clinic, which took on Duty’s case in 2016, said of the five-year battle to vindicate him. “It means that we’re doing the right thing. It means that all our hard work and dedication is worth it. And most importantly, it means that we were able to give somebody his life back. If you ask me what our clinic does, it works to give life back to people who’ve had it taken away from them.”

The arrest

For Duty, life as he knew it was taken away from him on May 29, 2013.

That is when, after a long day of working a construction job in the hot Florida sun, his boss, Fred Davis, dropped him off on a Jacksonville street corner, giving him $8 to buy cigarettes and beer.

Duty made the purchase, but he never made it home. A Jacksonville deputy sheriff detained him in the parking lot of a Safari Food Mart, saying that he fit the description of a suspect in an armed robbery that had been committed in the area only minutes earlier. Someone wearing a greenish gray sweatshirt and a red cap held a knife to Tiffany Saam’s neck and robbed her of $152 as she returned home from a job interview.

After law enforcement officers transported Saam to the location where Duty was being held, she identified him as the assailant. Then, in a process that took hours but to Duty seemed to transpire in the blink of an eye, he was arrested, Mirandized, and taken to a police station for questioning.

Inside the small interrogation room, a shirtless Duty pleaded his case. There had to be surveillance cameras somewhere along the route he took after exiting his boss’s vehicle. If there were, Duty knew, they would prove his claim of innocence that he was nowhere near the crime scene at the time it occurred.

But the detective told him, “You are in the South. They don’t have cameras on a street corner.”

Even Duty’s pleas—13 in all—for someone to call his boss were discarded.

So, he was fingerprinted and booked, and on Dec. 13, 2013, after a one-day trial, a jury found him guilty. Two months later, a judge sentenced him to 20 years.

The letter

During her time as an intern in Miami Law’s Innocence Clinic, Lauren Van Buren had poured through hundreds of letters from convicted inmates in Florida wanting Trocino and his students to take on their case. The letter she opened from Duty one day five years ago was like none other.

“Part of our job is not only to find the cases where people are innocent, but to rule out the ones that don’t add up. That way, we’re not spinning our wheels. We’d lose credibility if we pursued every letter that came to us,” Van Buren said. “So, we investigate to figure out whether a case is worth pursuing. And in Duty’s case, it was—without a doubt. I told Craig, ‘There’s no way we’re turning this one down.’ ”

Duty’s conviction, she knew, hinged on a highly suggestive show-up in which the victim, Saam, was presented with only one suspect for identification and informed by sheriff’s deputies that they were holding someone who fit the description of the robbery suspect she provided.

But Duty was not wearing the clothing Saam described. When deputy J.A. Taylor detained him, Duty was shirtless, wore a toolbelt and backpack, and donned duct-taped shoes—items of clothing Saam never described.

What’s more, an important piece of evidence was missing: the $152 allegedly taken from Saam. It was not on Duty’s person. He had only $2.25 in his pocket—change from the money his boss had given him for cigarettes and beer.

“If any case were the poster child for a miscarriage of justice, it was Duty’s,” said Trocino, noting that eyewitness misidentification is the single greatest cause of wrongful convictions. 

Uphill battle

But what seemed like a slam-dunk case proved to be an uphill legal battle. In 2017, a circuit court denied post-conviction relief for Duty, delivering a blow to his hopes of being set free.

The wheels of justice had seemingly grinded to a halt. But “faith in God and knowing that I was truly innocent kept me going,” Duty said. “Sometimes, when things would get bad, I’d remember I had a mother and other people out there who cared for me.”

Vindication wouldn’t come until nearly four years later, when in late July 2021, Florida’s First District Court of Appeal sided with the Innocence Clinic and overturned the conviction, agreeing that Duty received ineffective assistance of counsel because his trial lawyer failed to call the one, credible alibi witness whose testimony could have cleared him: his boss. Fred Davis had always maintained that at the time of the robbery, he was dropping Duty off from work.

The appellate court also held that Duty’s trial attorney failed to impeach the lead detective on the case or challenge the highly suggestive show-up identification. 

Three months later, the State Attorney’s Office for the Fourth Judicial Circuit dropped the armed robbery charge. 

Duty, who, with the assistance of the School of Law’s Innocence Clinic and the Tallahassee-based Innocence Project of Florida, had waged an eight-year battle to gain his freedom and emerged victorious after it was all over. 

From left, Seth Miller, executive director of the Innocence Project of Florida, Dustin Duty, and Craig Trocino, director of Miami Law's Innocence Clinic, on the day of Duty's release.
From left, Seth Miller, executive director of the Innocence Project of Florida, Dustin Duty, and Craig Trocino, director of Miami Law's Innocence Clinic, on the day of Duty's release.
Passionate students

A total of 18 Miami Law students worked on the case over the past five years, pouring over the original trial transcript, interviewing witnesses, conducting their own investigations, and filing legal motions.

As interns and fellows graduated, new teams of students would pick up the mantle, relying on the detailed notes of their predecessors to keep the appeals process moving forward. “It was that continuity in representation that was critical,” Trocino said. “Part of what the clinic does is train students to be good lawyers—and good lawyers document meticulously.”

Some, like Van Buren, who is now an attorney in the Miami office of the international law firm Greenberg Traurig, even continued to work on the case after they graduated from the School of Law. On the day of Duty’s first post-conviction hearing in 2017, she was already working for a private law firm but took the day off and drove the five hours from Miami to Jacksonville to attend the proceedings.

What convinced her that Duty was innocent was a geography experiment she conducted while still an intern at the clinic. Using Google Maps and armed with the locations of the crime scene, the street where Duty’s boss dropped him off, and the food mart where he purchased cigarettes and beer, Van Buren determined that it would have been nearly impossible for him to have covered that distance on foot and committed the crime at the time it reportedly occurred. “Not even an Olympic athlete could have done it,” she said.

Other Innocence Clinic interns, both current and former, are just as passionate about their work on the case. For School of Law student Jillian Kushner, who helped draft one of Duty’s post-conviction appeals, “there are no words to describe how I feel about this victory,” she said.

“We finally got a court to see what we saw. This is something that, of course, many attorneys dream of doing. It’s something that we go into every case hoping to achieve. But there are so many roadblocks that come up, so it’s hard to get someone out of prison, even when they’re innocent,” Kushner explained.

“I came to Miami because of this clinic; it’s what I wanted to do,” she continued. “Now, to actually help exonerate someone, even if it was just playing a small part, is incredibly fulfilling.”

Leticia L. Mora, who interned at the Innocence Clinic during the 2016-17 academic year, became so inspired by the legal work she performed on the Duty case that she worked briefly as a public defender after graduating from law school.

“Wrongful convictions,” she said, “are the epitome of the justice system failing, and the repercussions stemming therefrom are immeasurable. I wanted to have a role in fixing that.” Mora is still in “shock and disbelief that something [the Duty case] we worked on as students has manifested and had very real-life implications years after,” she said.

The Duty case is Tori Simkovic’s third successful exoneration. As an investigative student journalist for Northwestern University’s famed Medill Justice Project, she helped vindicate two wrongfully convicted inmates. Clearing the innocent, said the third-year School of Law student, never becomes mundane.

“Victories like this are hard to come by. Even when you have the strongest of cases and are absolutely convinced of a client’s innocence, there’s always the last hurdle of proving it in court. And that’s a very difficult challenge,” said Simkovic, who worked on Duty’s successful post-conviction motion and drove to Jacksonville to greet him when he was released.

MacKenzie Zales, who is now an attorney in Washington, D.C., spent an entire summer working on the case as an Innocence Clinic fellow. “It was a total immersion,” she recalled. “The trial transcript, witness depositions, the recording of Dustin’s interrogation—it was long hours going through every piece of evidence.”

From the way in which suspects are identified and interrogated to the stringent deadlines that come with the lengthy appeals process, Trocino and his students all agree that the Duty case, like other wrongful convictions, exposed flaws in a criminal justice system that can make it difficult to correct miscarriages of justice.

Though some reform has taken place, more needs to be enacted, Trocino said.

“In Florida, there’s a relatively new statute on eyewitness identifications. There are now codified methods for how they’re supposed to be done. So, that will alleviate or prevent some of the undue suggestion that caused the problem in Dustin’s case,” explained Trocino, referring to the Eyewitness Identification Reform Act.

Passed by the Florida Legislature in 2017, four years after Duty’s conviction, the statute requires law enforcement officers to conduct blind lineups in which the person administering the lineup is unaware of the suspect’s identify, instructing the eyewitness that the perpetrator may or may not be present. When Saam identified Duty in the parking lot of the Jacksonville food mart, deputies told her they had apprehended someone who fit the description she gave. 

Reforms to the post-conviction appeals process are needed as well, Trocino said. “Over the last three or four decades, the procedural rules have developed in a way that becomes almost grotesquely antagonistic to anyone making a wrongful conviction claim,” he said. “And that’s what can cause the lengthy litigation process.”

Trocino also pointed to the Antiterrorism and Effective Death Penalty Act of 1996, which, he said, can “dramatically curtail” a state prisoner’s ability to appeal at the federal level. 

Growing caseload

The clinic’s caseload continues to grow. Most of the appeals the group handles do not involve DNA evidence. “But we do handle those. There’s not very many of them left, where there’s DNA that had not been tested,” Trocino said. “When the innocence movement started in 1990, there were thousands of cases where there were biological samples but no DNA testing because no one knew how to do it back then. So, that’s where the genesis of this started. We’d go back and test these biological samples and say, ‘The guy who got sentenced to life in prison is scientifically excluded from being the donor of that particular semen or blood or whatever.’ That’s where it all started.”

Trocino, who once defended death row inmates as an attorney for the Capital Collateral Regional Counsel’s southern office, and his students are currently appealing three cases that involve DNA evidence, one of them a murder conviction. “The judge has ruled that we’ll get an evidentiary hearing on that one. It’s a compelling case,” he said, without revealing too many details.

As for Duty, he’s planning a big reunion with his mother Dottie in Akron, Ohio, and he’s got a lot of catching up—and adjusting—to do. “I used to be able to get a haircut for $8. Now, it’s $30,” he said. 

His former boss, Fred Davis, has offered him his old construction job back. But for now, Duty is working elsewhere.

He said he is not bitter in the least about the eight years he lost. “I’m not going to sit around sulking and feeling sorry for myself,” he said. “I’m just moving forward, picking up the pieces.”