by Christopher Zoukis
Kevin O'Loughlin was wrongfully convicted of raping an 11-year-old girl in 1983. He spent almost four years in prison, where he endured multiple assaults – all for a crime he did not commit.
Then a convicted rapist confessed that he was “99 percent sure” he had committed the sexual assault for which O’Loughlin was convicted. O’Loughlin filed for compensation from the State of Massachusetts, but despite the confession and other evidence pointing to his innocence, the state refused to pay and the case will soon go to trial.
At stake is a payment of up to $500,000 provided under Massachusetts’ wrongful conviction compensation statute. Since the law was passed in 2004, 27 people have received a total of $8.34 million, in sums ranging from $60,000 to the half-million maximum.
But unlike the criminal trial that landed O’Laughlin in prison – in which prosecutors had the burden of proving his guilt – a claimant under the state’s compensation law must prove his or her innocence, following a multi-step process.
Initially, a court must agree either that the claimant received a full pardon or had his or her conviction overturned in a manner that “tends to establish the innocence of the individual.” Prisoners freed solely due to prosecutorial misconduct or on technicalities are not eligible under the law.
Next, former prisoners must prove a series of claims: that they never pleaded guilty to the offense, that they were sentenced to at least a year in prison and, crucially, that they did not commit the crime. The process involves a higher burden than obtaining a not-guilty verdict at trial.
Compensation cases are also not subject to rules of evidence typical in criminal cases. Evidence cannot be excluded, even if it was obtained in violation of the Fourth, Fifth and Sixth Amendments, according to the compensation statute.
Cases can take a long time to resolve, with two years allowed for evidence discovery under the trial schedule used for compensation requests.
“This process is designed to last at least three years,” said attorney John Thompson. “That means that the guy who’s coming out of prison has to wait at least three years to get the benefits from this, if he ever gets them.”
Thompson’s client, Mark Schand, was wrongfully convicted in 1986 of murdering Victoria Seymour. He served nearly 27 years in prison before being granted a new trial in 2013, after eyewitness Anthony Cooke recanted his identification of Schand and three new witnesses testified that he was not at the crime scene that night – the same testimony offered in vain at Schand’s original trial by his wife.
Then-Hampden County District Attorney Mark Mastroianni, who is now a federal judge, dropped the murder charge, sparing Schand another trial and clearing the path for his release from prison.
However, in addition to 27 years with no income or career advancement, plus the steady expense of his wife’s weekly visits, the record of his conviction still costs him job opportunities due to criminal background checks, Schand said.
“I’m sure I wouldn’t be working a $14, $15 an hour job at this point in my life. I’m 200 percent sure that’s because of my incarceration,” he stated. “I don’t think that’s OK. I definitely feel that I was held back.”
Amol Sinha, state policy advocate for the New York-based Innocence Project, declared the Massachusetts law is too restrictive.
“[Y]ou may be preventing people who are actually innocent from compensation” by setting the evidentiary bar so high, she said.
While 27 people have received compensation from Massachusetts, 36 others have filed claims under the law without success. Just three cases have gone to trial, with two decided in favor of the Commonwealth. Ulysses Charles, who served 17 years before DNA evidence cleared him of rape and robbery charges in 2001, is the only former prisoner to win a judgment against the state at trial. He was awarded $500,000.
State Senator Pat Jehlen, the sponsor of the law as it currently stands, introduced new legislation in January 2017 that would allow released prisoners to seek $50,000 in immediate financial assistance if they can show they will likely win their compensation case.
“There is a saying, justice delayed is justice denied,” Jehlen stated. “I feel pretty strongly we owe them – people wrongfully or erroneously incarcerated. It’s a moral debt.”
The legislation would also entitle successful plaintiffs to attorneys’ fees and prohibit the state from requiring recipients to return compensation funds if they win damages from other parties. The bill failed to pass during the legislative session.
The University of Michigan’s National Registry of Exonerations counts 54 overturned convictions in Massachusetts due to wrongful convictions as of September 21, 2017, though the actual number is likely higher.
O’Loughlin intends to see his case through, hoping justice will eventually prevail. “I don’t think they have any right to put me through any more,” he said.
Sources: Boston Globe, www.masslive.com, www.eye.necir.org, www.theweek.com, www.law.umich.edu
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