By Harry Williams IV

In 2013, Washington became the 28th state to pass a “wrongful conviction” statute. The Wrongful Conviction Compensation Act, codified at RCW 4.100, streamlines the procedures for seeking compensation for those wrongfully convicted and helps your client avoid some of the difficult issues of liability and immunity that often accompany wrongful conviction claims. In exchange, however, the statute offers modest compensation: $50,000 per year of incarceration, plus some important additional benefits, such as a tuition waiver at state colleges.

This article outlines the statute’s requirements, available compensation, and some of the questions you should think about if you are considering bringing a claim for wrongful conviction.

No one knows how many people have been wrongfully convicted. The Innocence Project has documented over 300 people who have been exonerated based on DNA evidence.¹ There are likely to be many others, however, who deserve compensation. DNA exoneration is not the only way to show a wrongful conviction, and faulty forensic science is just one of seven major causes of wrongful convictions, which include: eyewitness misidentification; invalidated or improper forensic science; false confessions/admissions; government misconduct; unreliable informants or snitches; and bad lawyering.²

Without RCW 4.100, it can be difficult to get compensation for a wrongful conviction

In passing RCW 4.100, the legislature found that people “imprisoned for crimes they did not commit have been uniquely victimized.” RCW 4.100.010. Despite the harm they suffer, a “majority of those convicted in Washington state have no remedy available under the law for the destruction of their personal lives resulting from errors in our criminal justice system.” RCW 4.100.010. The consequences can be devastating.

For example, the New York Times wrote about one person who was wrongfully convicted in Colorado and exonerated by DNA evidence after 18 years of incarceration. In 2013, however, he was living on food stamps and a monthly disability payment of less than $700.³

What makes it so hard for someone to win compensation for such a clear wrong? Two of the biggest stumbling blocks to winning compensation outside of RCW 4.100 are the immunity of important governmental actors and difficult issues of liability.⁴

Citizens often turn to 42 U.S.C. § 1983 to hold state officials accountable for unconstitutional acts. The law under § 1983 has developed in ways that can make it very hard to win compensation for a wrongful conviction. All three of the governmental actors most likely to cause a wrongful conviction enjoy at least limited immunity from suit.

Police officers have “qualified immunity” from suit, which can make it extremely difficult to successfully sue them for damages, and a police officer’s role is often limited. For instance, a wrongful arrest claim covers only the period before process issues (that is, before a defendant appears before a magistrate who determines probable cause), or, in most cases, one to three days. Wallace v. Kato, 549 U.S. 384 (2007).

Judges have absolute immunity from a suit for damages under Section 1983. That means that even where a judge acts maliciously and corruptly, they cannot be sued for damages. See, e.g., Mireless v. Waco, 549 U.S. 384 (1991).

Prosecutors are another likely defendant, but immunity protects most of a prosecutor’s actions. While no immunity attaches for “administrative actions” of prosecutors, the language of a 2009 Supreme Court opinion gives a flavor of how difficult it can be to hold a prosecutor accountable: The court would rather “leave unredressed the wrongs done by dishonest officers” than “subject those who try to do their duty to the constant dread of retaliation” by being sued. Van de Kamp v. Goldstein, 555 U.S. 335, 340 (2009).

In Van de Kamp, the defendant spent 24 years in prison after being convicted for murder based largely on the perjured testimony of an unreliable jailhouse informant. Nonetheless, in Van de Kamp, the Supreme Court held that the Los Angeles County district attorney was absolutely immune from claims alleging faulty administrative policies, such as a failure to disclose impeachment material due to a failure to properly train prosecutors, failure to properly supervise prosecutors, and failure to establish an information system containing potential impeachment material about informants. Although tenacious counsel in that case may have some success holding the municipality liable, see Goldstein v. City of Long

Beach, 715 F.3d 750, 751 (9th Cir. 2013) (reversing judgment on the pleadings against Goldstein), Goldstein’s saga shows how hard it can be to hold a prosecutor accountable for a wrongful conviction.

Although less well-developed, Washington law on immunities generally follows federal law. Thus prosecutors enjoy similar immunity under state and federal law, Musso-Escude v. Edwards, 101 Wn. App. 560, 567, 4 P.3d 151 (2000), and judges enjoy common law absolute immunity. Lallas v. Skagit Cnty., 167 Wn. 2d 861, 864, 225 P.3d 910 (2009).

If you can avoid these barriers, you may achieve a much larger result for your client. For instance, Jack Connelly and Tim Ford brought a case against Clark County and a sheriff’s deputy whose actions led to the wrongful conviction of two men on rape charges.⁵ After the men had served 17 years in prison, DNA evidence cleared them and the county settled for $10.5 million. In another recent high-profile case out of Clark County, a wrongly convicted former police officer won $9 million in damages in a jury trial after spending almost 20 years in prison.⁶

Malpractice is another avenue to seek compensation. A wrongful conviction claim, however, may turn on bad acts by the prosecutor or police rather than bad lawyering by your client’s attorney. You should also be aware that in a case alleging malpractice by a criminal defense lawyer, you must meet the normal requirements for a malpractice case and show your client is “actually innocent.” Ang v. Martin, 154 Wn.2d 477, 484-85, 114 P.3d 637 (2005). Actual innocence means proving by a preponderance of the evidence that a person did not engage “in the conduct he was accused of in the prior criminal

proceeding.” Id. at 484. As discussed below, RCW 4.100 has a similar requirement to the Ang “actual innocence” prong.

Using RCW 4.100 to get compensation for a wrongful conviction

Those considering representing the wrongfully convicted should consult both the statute and the guidance the Attorney General has created for processing these claims. Because this is a new law, there are no reported cases, and cases from other states provide limited guidance because of differences between the wrongful conviction statutes of the various states.

There are many elements of a wrongful conviction claim under RCW 4.100, and I will focus on a few important ones. There is a right to a jury trial and the standard of proof is clear and convincing evidence. RCW 4.100.060(5).

A claimant must have been convicted of a felony and sentenced to prison. RCW 4.100.040(1)(a). The claimant must also have been in prison only on the charge that he or she was wrongly convicted of—for instance, if the claimant had additional convictions for which he or she was also serving a sentence, he or she is not eligible. RCW 4.100.040(1)(a). The claimant must have finished their prison sentence.

A claimant can show that a conviction was wrongful in two ways. First, a claimant could show that they were “pardoned on grounds consistent with innocence”. RCW 4.100.040(c)(i). The second, and probably more common, way to show a wrongful conviction is to show that the conviction was “reversed or vacated and the charging document dismissed on the basis of significant new exculpatory information...” RCW 4.100.040(c).

While showing that your client was pardoned, or had his conviction reversed, is straightforward, meeting the next element may be more challenging, because you must show that he or she “did not engage in any illegal conduct alleged in the charging documents.” RCW 4,100.040(2)(a). You will likely have trouble meeting this requirement if, for instance, your client’s conviction was reversed because evidence was suppressed. That is, if the potential client had illegal drugs but got the conviction was reversed because of an illegal search, he or she is unlikely to be found “actually innocent.”

An interesting variant on “actual innocence” is where the client committed an act that would be a crime but for an affirmative defense. For instance, following long-standing Supreme Court precedent, the Ninth Circuit has written that to show actual innocence based on an affirmative defense, a person “must prove that it is more likely than not that no reasonable juror would have found that he failed to establish . . . the affirmative defense by a preponderance of the evidence.” Smith v. Baldwin, 510 F.3d 1127, 1140 (9th Cir. 2007) (en banc). Thus, an individual who wins a personal restraint petition or habeas action based on an affirmative defense is “actually innocent,” just as is someone who is cleared

by DNA testing. See Jaramillo v. Stewart, 340 F.3d 877, 883 (9th Cir. 2003) (holding that justification, an affirmative defense to first degree murder, met “actual innocence” requirement).

Compensation

If the Attorney General concedes that the claimant was wrongly convicted, “the court must award compensation . . .” RCW 4.100.040(5). Whether you win through concession or trial, the compensation is modest. An individual receives $50,000 for each year he or she was wrongfully incarcerated and $25,000 for each year on parole, community custody, or as a registered sex offender. RCW 4.100.060(5)(a). Attorney’s fees are limited to ten percent of the claimant’s recovery and capped at $75,000. RCW 4.100.060(5)(e).

Beyond money, the statute offers some real benefits to those seeking to piece their lives back together after a wrongful conviction. The state will pay for child support payments missed while in prison, and the state will waive tuition for both the wrongfully convicted person and his or her children. RCW 28B.15. RCW 4.100.060 lists other benefits that come with a successful suit.

Thoughts on seeking compensation under RCW 4.100

For many individuals, RCW 4.100 permits compensation where immunity or issues of proof would have made another cause of action impossible. The statute seems best suited to smaller cases where the facts show “routine” failures of the criminal justice system. It will be interesting to see if local governments or insurance carriers try to use the low compensation rates in RCW 4.100 as benchmark for damages, even when the case is brought under a different cause of action. Given that the compensation comes out of state funds, clients may be disappointed that an RCW 4.100 action does not directly hold accountable the people who caused the wrongful conviction.

Considerations of possibly bigger payoffs must be balanced against the potential efficiency of a claim under RCW 4.100 and the additional benefits, such as tuition, that a claimant may have.

Conclusion

While nothing can really compensate a person for the trauma of a wrongful conviction, RCW 4.100 is a step forward that will allow many individuals to receive something where previously there would be nothing. Evaluating a RCW 4.100 claim requires some knowledge of criminal law and, since the law is new, you and your client should be ready for the state to push some issues up to the courts of appeal to determine the contours of the statute.

Endnotes:

1. http://www.innocenceproject.org/know/ (visited December 28, 2013).

2. http://www.innocenceproject.org/understand/ (visited December 28, 2013).

3. Jack Healy, Wrongfully Convicted and Seeking Restitution, New York Times,, March

13, 2013.

4. Michael Avery, Obstacles to Litigating Civil Claims for Wrongful Convictions: An

Overview, Public Interest Law Journal 2009.

5. The case is Davis v. Clark County, 12-5765 RJB (W.D. Washington). For press

coverage, see http://www.columbian.com/news/2013/oct/22/clark-county-wrongfulconviction-

rape-northrop-dav/.

6. http://www.columbian.com/news/2014/feb/03/jury-awards-9-million-spencer/.

Harry Williams IV, WSAJ EAGLE member, is with the firm Keller Rohrback in Seattle.

His practice emphasizes appellate law, civil rights and consumer protection.

Originally published by Trial News Database (Volume 49-7) in March, 2015. Reprinted with permission from author.

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