Wrongful Conviction Lawsuit Defense Blog : Wrongful Conviction Defense Lawyer & Attorney : Andrew M. Hale Law Firm

Last week, we shared the story of a man who has yet to receive his compensation for his wrongful conviction.  As discussed, not all states have compensation systems in place. Nebraska is one such place.  The Innocence Project of Nebraska is trying to change that.  Omaha's WOWT-DT Channel 6 is reporting: 

The Nebraska Innocence Project is calling on state lawmakers to compensate those wrongfully convicted. Their request comes in advance of the anticipated pardoning of five of the "Beatrice 6," January 26th. Nebraska is one of 25 states without a statute providing compensation to those who are wrongly convicted. The Nebraska Innocence Project is lobbying for the passage of legislation. The group says it's needed not only as compensation for a past wrong, but to help those affected transition back into society with mental and vocational counseling, as well as job training.  Six individuals in total were accused of taking part in the 1985 rape and murder of Helen Wilson of Beatrice. However, they were cleared of wrongdoing through DNA evidence on November 7th. Joseph White did not seek a pardon because the charges against him were dropped.“The releases and pardons, acknowledging that a horrendous wrong has been done these people, are to Nebraska's credit," said Rebecca Murray, president of the Nebraska Innocence Project. "Many individuals who are exonerated in this country do not receive such a message.” She added, “Pardoning is not enough. These individuals deserve more than a pardon, more than an apology. They deserve resources to begin to put their lives back together.” Last week Senator Kent Rogert introduced LB 260, “Nebraska Claims for Wrongful Conviction and Imprisonment Act.” It would provide monetary and in-kind compensation to the Beatrice 6 and any future wrongly convicted claimants, and would expunge the conviction from their records. 

According to the The New York Times Sunday edition: 

Last month, the Nebraska attorney general, Jon Bruning, said DNA evidence conclusively linked another man, Bruce A. Smith of Oklahoma, to the rape and murder of Ms. Wilson, 68, who was killed on Feb. 6, 1985. Mr. Smith died of AIDS in 1992.  In a pre-session survey by The Associated Press, 14 Nebraska senators or senators-elect said they would support a measure providing compensation to exonerated inmates. Five said they would not, and 20 said they were not sure. One did not answer the question, and nine did not participate in the survey.

Any compensation package that is established in Nebraska should include a no-sue clause.  If a wrongfully convicted individual receives compensation he or she should be prohibited from seeking more money in a lawsuit.  

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Fox News in Memphis TN is reporting that Clark McMillan, who spent over 20 years behind bars for rape, has not received his settlement from the State.  McMilan was set free in 2002 and was awarded nearly one million dollars for the life he lost, but he says he has yet to receive a penny.

In 2004, the Tennessee General Assembly voted to award McMillan $832,000 as compensation for his wrongful imprisonment. But, except for an original lump sum payment of $250,000, McMillan, whoclaims most of that money's been eaten away by continuing medical bills for he and his wife, alleges he hasn't been able to get his hands on the rest of the money he needs. McMillan alleges he was pressured into taking a financial arrangement he really didn't understand at the time.

Under the Tennessee Code: Any exonerated or pardoned person is entitled to a total of $1,000,000 for the entirety of a wrongful incarceration. The board of claims, in determining the amount of compensation, shall consider the person's physical and mental suffering and loss of earnings. The claim must be filed within one year of exoneration. (Source: Innocence Project).  

It does not appear under the code that McMillan would be prohibited from pursuing a law suit against the police who arrested him.  That, as we have said before, would not be surprising. However, if McMillan has yet to file suit, his chances from seeking redress at this time may very well be bared under the law given the statute of limitations.  As for state sponsored case settlements, some states prohibit an exonerated individual from filing a civil lawsuit against a municipality, if a person takes a state sponsored cash settlement. A list of states offering such programs can be fore here. 

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The Chattanooga Times Free Press is reporting: 

State Rep. Stephanie Stuckey Benfield has been working on changing the way lineups are conducted in the state.  "So much of this comes down to training," said the DeKalb County Democrat. "If you've got good training, then you're less likely to make mistakes." Mistakes were the key issue for Rep. Benfield and the Georgia Innocence Project, a nonprofit group that works to secure post-conviction DNA testing for Georgia inmates. According to information from the Innocence Project, seven Georgia inmates have been exonerated based on DNA evidence since 1999. During original trials all seven were misidentified by either the victim or an eyewitness. According to the project, more than 75 percent of prisoners exonerated by post-conviction DNA also were misidentified during their original trials. The Georgia Police Academy for years has offered training in conducting suspect lineups for eyewitness verification, but the course has been part of the academy's criminal investigator program only.With the new Georgia Peace Officer Standards and Training recommendations, course materials are available online and can be tailored to police agencies of all sizes.

Dalton police Chief Jason Parker said most of the main points of the training are already in place at his department. "I don't think it throws too many obstacles in investigators' way and it's reasonable to do," Chief Parker said. The three key areas that the course addresses are preparation, presentation and preservation, Mr. Howard said. The training outlines correct preparation for the lineup when choosing participants or their photographs, the best practices for presenting the lineup and preserving the results through good documentation of what the witness intended. A major point that both Rep. Benfield and Innocence Project officials have pushed for is a "blind administrator" to conduct the lineups. That's a police officer who has no knowledge of the investigation and could not influence a victim or eyewitness to select a suspect. "You don't want to indicate the suspect to the witness," Chief Parker said. "They may feel undue pressure to identify the person."

One part of the new course recommends that police tell the witness that he or she does not know if the suspect is in the lineup, which should reduce any influence on the witness, Rep. Benfield said. Though it took four years of pushing her bill in the General Assembly, Rep. Benfield said she's happy that the changes took place within law enforcement.

Much is made about blind administration of lineups within the academic world.  In Chicago, a study (The Illinois Field Study) was conducted that showed that the old original method produced more correct identifications.  That  study was conducted in Chicago, Evanston and Joliet by then General Counsel to the Chicago Police Department, Sheri Mecklenburg along with Ebbe Ebbesen a psychology professor at the University of California at San Diego.   

In the end, we know that mistaken identifications occur, irrespective of the lineup conditions or who is administering the lineup.  

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 The Chicago Tribune is reporting: 

Clyde Charles, the first inmate to use a federal civil rights law to sue for DNA testing that not only cleared him of a Louisiana rape conviction but also sent his brother to prison for the same crime, has died. He was 55.

Mr. Charles died Jan. 7 of natural causes at his home, relatives told The Courier newspaper. His health problems included diabetes that required dialysis, they said.

He was the first inmate to sue under the federal Civil Rights Act to get his DNA compared to DNA samples held as evidence, said Barry Scheck, co-director of the Innocence Project, a legal center specializing in wrongful conviction cases

After Mr. Charles was sentenced to life in prison for the 1981 rape of a nurse who identified him as her attacker, he pleaded with authorities to conduct DNA testing against evidence collected in the case.

Although investigators had semen samples from the victim, the technology to compare DNA samples didn't exist during Mr. Charles' trial.

Clyde Charles had a tough life after his release from prison, suffering from post-traumatic stress disorder, nightmares and terrible pain from his diabetes, Scheck said Tuesday.

In early 2003, Mr. Charles was arrested on a charge that he had stabbed one of his other brothers, but was released on $100,000 bail for intensive drug rehabilitation. That case was continued indefinitely in a deal brokered with state prosecutors.

"I wish I could tell you they lived happily ever after. But they didn't," Scheck said.

(Photo Above: Kirk Bloodsworth (left) spent 9 years in prison and Clyde Charles (right) was on Death Row 18 years before Scheck (center) used DNA testing to prove their innocence).  

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In response to a motion to reconsider the granting of summary judgment, defendants attached a copy of the grand jury testimony to support their contention that probable cause existed to prosecute the plaintiff, requiring dismissal of plaintiff's malicious prosecution claim.  Addressing the grand jury transcripts, Judge Gottschall explained:

[Defendants] attached a portion of the grand jury testimony to their motion for summary judgment. Disclosure of Illinois grand jury testimony is prohibited by law absent an order from an Illinois court, and improper disclosure is punishable by a contempt of court action.  (citations omitted). The secrecy of grand jury proceedings is maintained “to insure the grand jury freedom in its deliberations, to prevent subornation of perjury, to encourage disclosure by witnesses, and to protect the innocent from unwarranted exposure,” as well as to “assure freedom of deliberation of future grand juries, and the participation of future witnesses, as well as to provide these assurances to those who appeared before the instant proceeding.” (citations omitted). There is no indication from [Defendant's] papers that a prior order from an Illinois court was obtained which authorized disclosure of this transcript, nor is it clear how this document was obtained. This exhibit is stricken from the record, though Defendants may resubmit it upon a showing that disclosure is legally authorized. 

The Court also disagreed with the premise that because the Grand Jury indicted the plaintiff without testimony from the defendants, defendants cannot be held liable for prosecution.  Defendants were unable to establish that the indictment came independently from them. 

The decision also discusses the Seventh Circuit's holding in Village v. Hoffman Estates, namely that a finding of probable cause for any arrest does not necessarily forecloses every malicious prosecution claim.   Probable cause needs to be established for each count of the prosecution. 

Akbar v. City of Chicago, 2008 WL 5272463 N.D.Ill.,2008.

This is a first for me.  Do we need to re-examine the use of grand jury transcripts in civil cases?

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By a 10-0 vote, the Chicago Bar Association's Criminal Law Committee recommended to the State of Illinois to end the use of the death penalty.  According to Cook County Judge Shelia Murphy the vote did not surprise her from an economic point of view.

WBBM News in Chicago reports that Judge Murphy told the committee: 

That multi-million dollar payouts being made by the city of Chicago and state of Illinois for wrongful death sentences is money that could be spent for far more useful purposes.

"We're in just terrible economic times," Judge Murphy said. "The times are like my parents talked about in the Depression. The state of Illinois is in deep rouble, and we should not be squandering money on the death penalty when there's such great need -- not just with victims but with the elderly, with children, for health care and for education."

Murphy cited studies elsewhere that have shown the cost of sentencing a criminal to natural life without parole is far less expensive than the costs of putting an inmate to death, when the costs of prosecution, appeals and legal defense are added up, not to mention expensive wrongful conviction sentences.

Other groups in Illinois have made similar recommendations in the past, including the Illinois State Bar Association and the Chicago Council of Lawyers.

The vote is of no surprise.  There is currently a moratorium in Illinois, set by former Gov. George Ryan before he went to prison.  The many cases of individuals exonerated and released from custody on DNA evidence has set this trend into motion.  The vote or even the eventual abolishment of the death penalty in Illinois will cause no real practical changes, at least not now.  Even current (as of this posting) Gov. Rod Blagojevich has not lifted the moratorium and there is no indication that any future Illinois governor would lift it.  

If the CBA is really concerned of the financial impact these case have on the City of Chicago, the CBA should look into recommending caps on recovery in wrongful conviction lawsuits, similar to those imposed on medical malpractice cases in other states.  The CBA should also set up a committee to study the Section 1988 fee-shifting statute, which allows plaintiff's attorneys to recover fees, on top of already high jury verdicts.  In some cases, attorneys fees vastly exceed the verdict. Caps on both judgments and attorneys fees, as opposed to abolishing the death penalty, will establish the necessary relief to tax payers.     

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The Virginia Times Dispatch is reporting that the U.S. Justice Department awarded $300,000 to the Urban Institute to study the rate of wrongful convictions.  The Urban Institute studies social and economic issues to promote public policy and effective government.  It is unclear what the study would reveal.  They will arguably come up with statistical figures.  But statistics are easy to manipulate, depending on your underlying hypothesis.  It is also very hard to generalize how wrongful convictions occur.  Various NGOs (Non Governmental Organizations) categorize wrongful convictions in general categories:

Eyewitness Misidentification
Unreliable or Limited Science
False Confessions
Forensic Science Fraud or Misconduct
Government Misconduct
Informants or Snitches
Bad Lawyering

(Source: Innocence Project Causes of Wrongful Convictions) 

Categorizes are misleading as each case is extremely fact intensive.  Even the categorize themselves blur.  Depending on the intended goal - and eyewitness misidentification case - can easily be alleged to be a police misconduct case.  In fact, all the cases we have seen, eyewitness misidentification was merely a pre-text to allege police misconduct.   Nevertheless, we hope the study will analyze the details of the cases and not merely reach a general conclusion based on statistics.  Its very easy to blame someone else for the cause of the wrongful conviction.    We have seen that the Police, all to often, are the easy target to blame, given they are indemnified by municipalities in civil suits.   We hope the Urban Institute contacts us to get the defense side of the issue so that the study can present a fair report.  We won't hold our breath.  

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