Stephanie Clifford of the New York Times last Tuesday wrote a piece on a growing trend among prosecutors facing motions to vacate wrongful convictions: They will consent to the motion if the defendant agrees to waive his right to seek money damages for his wrongful conviction.
The story focuses on the Philadelphia case of Jimmy Dennis, who had a Federal appeals court vacate his conviction and order a new trial based on newly discovered evidence of his innocence. Rather than give him that new trial, the city offered that if he plead no-contest to third degree murder he could walk out of prison immediately. His other option was to remain incarcerated awaiting trial for at least another year, and then place his hopes on the very system that wrongfully put him there in the first place. Jimmy Dennis chose freedom knowing his plea banned him from seeking money damages for the 28 years he wrongfully spent in prison.
One of the most high profile wrongful conviction cases – that of the West Memphis Three – ended the same way. Following a 2010 decision by the Arkansas Supreme Court regarding newly produced DNA evidence and potential juror misconduct, the West Memphis Three negotiated a plea bargain with prosecutors. On August 19, 2011, they entered Alford pleas which allowed them to assert their innocence while acknowledging that prosecutors have enough evidence to convict them. Judge David Laser accepted the pleas and sentenced the three to time served. They were released with suspended sentences of 10-years, having served 18 years and 78 days in prison. They lost the right to sue but got their immediate freedom. The plea offer put a lot of pressure on the three men as one of them, Damien Echols, was facing the death penalty.
In one of my cases, Emel McDowell and I were in the middle of a hearing to vacate his murder conviction from decades earlier, when new exculpatory Grand Jury testimony was revealed that had never been turned over to his defense lawyers. The prosecutor conducting the hearing offered Emel time-served, right on the spot. If he acknowledged being present and knowing that the gunman was going to shoot the victim, he could get out immediately. It was a lie, but it was lie that would have him home with his family after all those lost years. He took the deal and got out, but still has a felony manslaughter conviction on his record. We are now applying to Kings County DA Eric Gonzalez’s Conviction Review Unit to undo thee conviction so Emel can go to law school and become a lawyer.
Currently, 35 states, the Federal government and the District of Columbia have laws providing for some form of compensation for the wrongfully convicted. Nine of those states (AL, FL, HI, IN, MI, MN, MS, NJ, NC, and WA) cap the amount awarded at$50,000.00 regardless of how long the person served. All the states do not allow juries to determine the amount to be awarded, relying instead on judges, legislators or commissions to set the award.
For small municipalities, awards for wrongful conviction can be staggering. As Ms. Clifford reports in the Times, Gage County in Nebraska has been ordered to pay $28 Million to six exonerees forcing the county to consider bankruptcy protection. But here is the deal, in State wrongful conviction statutes, States can be obligated to pay even without fault, along as the person can prove their innocence. Counties, towns and cities, however, can only be found liable if there was a violation of the person’s civil rights – some form of wrongdoing must be proven. And on top of that, the person must prove their innocence; you don’t get compensated for legal loopholes or procedural errors. This places a high burden on exonerees to win these cases and makes sure that only the actually innocent get compensation.
But making a person give up his right to sue in the middle of a person’s fight for freedom is wrong. Trapped in a cell and having the key dangled in front of you does not afford the best circumstance to make sound legal decisions. Being compensated for losing years of your life by being wrongful conviction is not a lottery win. States are right to afford some measure of compensation for those that have been wronged by society in this fashion. And if a municipality engages in wrongdoing that leads to wrongful imprisonment, then they should be required to pay a just award. It is unfair to put this Hobson’s Choice on the table in the courtroom.
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