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Compensating the Wrongly Convicted, or Not

by Matthew T. Clarke

Hundreds of thousands of men and women are hidden from society—social failures convicted of felonies—behind concrete walls and razor wire in isolated parts of our country. Nestled among them are society's silenced victims—the wrongfully convicted.

Society is loath to admit its mistakes. Citizens would rather believe the police are trustworthy than accept they plant evidence. The community would rather believe that a criminal was captured and brought to justice than a crime remains unsolved. Prosecutors who have publicly accused a person of a crime are reluctant to admit a mistake. Indictments and press releases are the life-blood of public officials.

This bias is further magnified when a series of similar crimes occurs, causing community pressure on police, judges, and prosecutors to find and convict someone—anyone. Harried prosecutors manipulate police, forensic experts, and other witnesses to conform their testimony to the desired outcome. All this leads to conviction of the innocent along with the guilty. Once convicted, this injustice is seldom undone.

It is uncomfortable to believe that innocent people are in prison or worse—executed. Therefore, prosecutors, police, witnesses, judges, juries, victims and the media join in a great festival of public denial insisting-that wrongful convictions are rare and never happen locally. DNA science proves otherwise. Still the wrongly accused are hampered in their attempts to prove their innocence. Those who are lucky enough to unquestionably prove the injustice are shunned. The stigma of a serious felony conviction remains. Compensation is usually nonexistent or woefully inadequate. Society's denial revictimizes the wrongly convicted.

The advent of sophisticated DNA testing has led to a dilemma society has never before faced: how to compensate large numbers of ex-prisoners who have absolute scientific proof of their innocence. Ironically, public officials often point to the exonerations as proof that "the system is working" even when more than a decade of the victim's life was stolen. Never is it mentioned that, in the vast majority of cases, no DNA evidence is available—indicating that the DNA exonerations are but the tip of an iceberg of misery suffered by the wrongly convicted.

The Associated Press tracked down 110 men whose cases had been overturned by DNA evidence. They had served a total of 1,149 years in prison; an average of 10.5 years per prisoner. Two-thirds are black or Hispanic. Around two-thirds were convicted by mistaken eyewitness testimony. 14 percent owe their convictions to mistakes or misconduct by forensic experts. Some were coerced by police or prosecutors into confessing to crimes they did not commit. The threat of the death penalty is a persuasive inducement to confess to save your life. Nine who confessed were fully or borderline mentally retarded.

Despite the fact that the wrongful imprisonment usually came during critical wage-earning years when careers and families are built, only slightly more than a third of the wrongly convicted have received any compensation. Even when faced with irrefutable proof of innocence, prosecutors often threaten lengthy delays if the innocent person doesn't "cop a plea" for "time served," a tactic which results in immediate release, but allows neither monetary compensation nor the recovery of any personal honor.

Some of the victims can never be fully compensated. Henry Myron Roberts died of heart failure in a Maryland prison in 1995. He was convicted of the murder of his two nephews, but had always maintained his innocence. On April 9, 2002, another man was convicted of the same murders after confessing to the crimes. According to Roberts' lawyer, he had no family to rejoice over his exoneration or sue the persons responsible for the injustice.

48 year-old Larry Johnson spent 18 years of his life in a Missouri prison following his conviction for a rape he didn't commit. However, Missouri, like 34 other states, has no statute guaranteeing compensation for the wrongly accused. Therefore, he may have to be satisfied with the free flight to St. Louis and mumbled apology he was given when the jail door was opened.

In some cases official misconduct is involved. Walter McMillian spent six years on Alabama's death row after a wrongful conviction. Evidence proved a sheriff's deputy hid evidence of McMillian's innocence. At the time of his exoneration in 1993, Alabama had no compensation law. McMillian filed a civil rights suit against the county, the sheriff, and the deputy. He lost the suit against the county in 1997 when a strongly divided U. S. Supreme Court ruled against him on a legal technicality. McMillian v. Monroe County, Ala., 520 U.S. 781 (1997). Fortunately for McMillian, he had already settled with other parties in the case for an undisclosed amount. Thus, he was left with at least some compensation.

McMillian's case helped lead to the passage of an Alabama law on compensation. However, for many other exonerated people in states without compensation laws, there is no one to sue. To sue the police or a prosecutor, an exonerated person must first have proof of malicious intent. Many wrongful convictions are accidents not caused by intentional malice. Even with such proof of malice, an exonerated person faces hurdles ranging from difficulty in finding a lawyer who is willing to "sue the system" to years of entanglement in the courts battling federal and state laws giving witnesses, prosecutors, judges, and police immunity from suit. This explains why the $36 million settlement in the highly publicized case of seven men released after spending between 11 and 17 years on Illinois's death row represents a unique case.

Other factors were also involved in the record $36 million settlement. 14 lawyers, including the legendary Gerry Spence, represented the exonerated men. A full-scale prison cell was constructed in the courtroom as an exhibit.

"It was like the perfect storm," said Peter King, one of the attorneys. "We had a great set of facts and a combination of really good lawyers."

No wonder Cook County wanted to settle before trial.

Even where compensation laws exist, there is frequently an absurdly low cap on compensation. In the federal system, the maximum compensation allowed is $5,000; in New Hampshire, $20,000; in Wisconsin, Ohio and Iowa, $25,000; in Illinois and North Carolina, $150,000; in Maine, $300,000; and in Texas, $500,000. In Alabama, compensation is limited to a maximum of $50,000 per year. California limits compensation to $100 per day, while New Jersey's limit is twice the exonerated person's annual pay. West Virginia's limit is "reasonable damages" and Tennessee's limit is "actual damages." Only New York and D.C. have no cap on compensation. Additionally, most states and the federal government require that an exonerated person receive an official pardon as well as be exonerated by the courts before any compensation is paid.

A. B. Butler received a check from the State of Texas following his exoneration and pardon two years ago for a wrongful rape conviction. The check for $27,854 amounted to an average of $4.60 a day for the 16.5 years he spent in prison.

"It should have been more, and it could have been more," sighed Butler, "But I just look at it as a blessing that I'm free. I take what I have and move on. There's always tomorrow, and that's what I look forward to."

Ray Krone was released from an Arizona prison on April 10, 2002, over ten years after he was wrongly arrested for murdering a young woman. When Krone's attorney, Christopher Plourd, convinced a judge to run DNA samples lifted from the victim's body through a federally-sponsored sex offender DNA database, they discovered that the murderer was actually a sex offender who was incarcerated in Arizona. Upon his release, Krone - who lost his house, dune buggy, boat, retirement savings, and $30,000 a year Postal Service job—received an apology from the prosecutors and $50, the same amount paid to any released prisoner.

Although there is no vocal lobby opposing compensation to those who are exonerated, the state legislatures seem to be in no hurry to pass compensation statutes in the states lacking them. Last year, Oklahoma Governor Frank Keating vetoed a bill passed by the state legislature which would have provided up to $200,000 to wrongly convicted persons. He said that it would have created liability even when the state did nothing wrong and that this was too much to expect of a system sometimes afflicted by honest human error.

There can be no doubt of the need for compensation statutes. Vincent Moto, a 39-year-old father of four who was wrongly convicted of rape and imprisoned in Pennsylvania for 10.5 years says it destroyed his family. Richard Danziger, 31, spent 1990-2001 in Texas prisons after his wrongful conviction for rape. While he was incarcerated, another prisoner assaulted Danziger causing permanent brain damage. His sister, whom he lives with, noted that he can do little other than watch TV and go to the park.

Often the exonerees' families have suffered right along with them and continue to suffer following their release. Imelda Shapiro is the mother of David Vasquez, a borderline retarded man who confessed after he was wrongly identified by a witness as being the man who lurked outside the home of a woman who was raped and murdered. Shapiro said that both her life and her son's were destroyed by his wrongful conviction. This suffering continues despite the exoneration.

"We can't afford to go out, and I'm afraid to go out," said the weeping Shapiro, noting that some people will forever believe her son guilty, despite the fact that four years after Vasquez's conviction, DNA evidence proved that the real killer was a serial rapist.

Even exonerees who successfully sue often are faced with other difficulties related to their imprisonment. Clarence Bradley, freed from death row in Texas after nine years, sued for wrongful imprisonment and was soon hit with a $50,000 bill from the State for the delinquent child support and interest that accrued during his imprisonment. Louisiana exoneree Clyde Charles, has been swamped by medical bills and overdue property taxes since his release in 1999. Ironically, the same DNA test that exonerated Charles after 19 years in prison,. led to the conviction of his brother Marlo, who received a life sentence for the same rape. A bill to compensate Charles stalled in the Louisiana legislature when detractors pointed out that his brother's silence, not just the State's errors, led to Charles's incarceration.

Compensation may also be a long time coming. Freddie Lee Pitts was 19 when he was convicted of murder in 1963 in Florida. Exonerated in 1975, he had to wait until 1998 for the legislature to pass a law to compensate him and his brother, co-defendant Wilbert Lee Pitts. Each received $500,000 after seeking $1.5 million. Freddie Lee Pitts refused to appear at a ceremony with the bill's sponsor, calling it a "cheap political cop-out."

41 year-old Kirk Bloodsworth, exonerated in 1993 of a Baltimore, child rape-murder conviction, received $300,000 tax-free from the Maryland legislature. After subtracting legal expenses and outstanding student loans, about $100,000 remained. He spent that in about two years.

"You have a lot of suddenly appearing friends, and you want to be accepted ... so you spend like crazy," says Bloodsworth. "You realize when (the money's) gone that you were ... looking to get rid of this shadow that follows you. Even if you're exonerated, some people still treat you like you're guilty."

Bloodsworth doesn't think the compensation was adequate. He was branded a child molester/murderer and spent close to a decade in prison, including 2.5 years on death row.

"The state was ready to kill me," Bloodsworth said, his voice rising, "and I got $300,000."

David Shawn Pope, who received $385,000 after spending 15-years in a Texas prison for a rape he didn't commit, went on a spending spree as soon as he was released. Pope benefited from a Texas law passed last year which raised the compensation cap up to $25,000 per year of incarceration with a maximum of $500,000.

"To be honest with you, when I got out, I was pretty lonely," said Pope. "Spending money can be an addiction. It makes you feel better."

Only in the rarest of cases are law enforcement officials prosecuted for their part in convicting the innocent. Rolando Cruz has such a case. Convicted of murdering a 10-year-old girl, Cruz and two co-defendants received a $3.5 million settlement from DuPage County, Illinois after seven law enforcement officials were indicted for falsifying evidence against them. The seven were acquitted in 1999.

Sometimes defense attorneys, not the state, are to blame for the wrongful conviction. Even then, compensation is hard to come by. Anthony Hicks, released in 1996 after a wrongful conviction led to five years in a Wisconsin prison, sued his lawyer for not requesting the right kind of DNA testing. A jury awarded him $2.6 million, but a court of appeals overturned the award, ordering Hicks to prove his innocence (not just that he would not have been convicted) in a new trial.

Even when the true criminal comes forth, getting exonerated may not be so easy for the wrongly convicted. Consider the case of Richard Danziger and Christopher Ochoa. In 1990, Ochoa was convicted of the rape and murder of Austin, Texas Pizza Hut employee Nancy DePriest. Threatened with the death penalty, Ochoa changed his story several times and eventually confessed to the crime, implicating Danziger. To avoid the death penalty, Ochoa testified against Danziger, who steadfastly maintained that police and Ochoa were lying, but was nonetheless sentenced to death.

Starting in 1996, another Texas prisoner, Achim Josef Marino, a born-again Christian, began his attempts to get the attention of law enforcement-officials and the ACLU. He wrote the Austin police, a Austin newspaper, and Austin branch of the ACLU, confessing to the crime and telling them that the Pizza Hut night deposit bag and DePriest's keys could be found in his parent's house. After receiving no response, Marino wrote then-governor George Bush in 1998, explaining how he completed the AA 12-Step program, found Christianity, and felt compelled by his religion to confess the crime and point to where the evidence could be found. Again no immediate action resulted from the letter.

Finally, the Innocence Project became involved in the case. DNA tests have shown that neither Ochoa nor Danziger's DNA matches the semen found in DePriest. Tests are being conducted to see if the semen's DNA matches Marino's DNA. Ochoa and Danziger languished in prison until late 2001.

Other problems face newly released exonerees. "The people who come out of this are often very, very severely damaged human beings who often don't ever fully recover," says Rob Warden, executive director of Northwestern University School of Law's Center on Wrongful Convictions. "Lightning strikes, they come out," he says, "and they're in bad, bad shape."

According to Elize Kaplan, deputy director of the Innocence Project the organization will soon broaden its focus to include compensation for the wrongly convicted.

"All of these people deserve something for their time in prison. They need a lot more financial support and other kinds of support too, ranging from job skills, to mental health, family-related issues, and depression," said Kaplan.

Sources: Associated Press, Seattle News-Tribune, Houston Chronicle, Columbus Dispatch, USA Today,

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