Wrongly convicted rarely get state cash
Glenn Payne spent 13 years in prison for a 1991 child-molesting conviction in San Jose based on hair-identification evidence that has since been discredited. His record cleared, Payne, 55, no longer has to register as a sex offender and says he’s regaining his peace of mind.
What he and most others in similar situations are unlikely to gain is any financial compensation for their years behind bars.
California uses state funds to compensate the wrongfully imprisoned, at $140 for each day of their confinement. But they must file their claim within two years of their release, and then must prove to a jury or a state board that they were innocent.
Payne would not qualify — his twoyear deadline expired in 2007, and though prosecutors concede he was wrongfully convicted, his lawyers have not tried to present evidence that he was innocent. That can be especially hard to prove in older cases where evidence is often destroyed, as it was in Payne’s case.
As a result, the state seldom has to
pay for the legal system’s mistakes. The California Victim Compensation Board says it has received claims of innocence from 76 former inmates since 2006 and approved 26 of them, for a total compensation of $14.1 million.
Payne was convicted of molesting a 2-year-old girl, largely on the strength of testimony by a Santa Clara County forensic analyst who said hair found on Payne almost certainly came from the victim. Last year, the analyst recanted his testimony, saying it was based on an unreliable study. On Jan. 29, without objection from the prosecutor’s office, a judge threw out Payne’s conviction.
“I want to find housing, enjoy my life. I’m figuring out what tomorrow will be, and the next day,” Payne said after the court hearing, which also freed him of the lifelong obligation to register as a sex offender. He has been homeless at times since his release from prison and recently has been living with his 87-year-old mother in San Jose.
If he had applied for state compensation for the innocent by 2007 and received it — an unlikely outcome, since his conviction was still on the books — it would have come to about $475,000, at $100 per day, the rate at the time.
“Such a large sum of money for someone like Glenn is the difference between adequate food, health care and shelter, and homelessness,” said Linda Starr, a Santa Clara University law professor and executive director of the Northern California Innocence Project, which represented Payne in the proceedings that cleared him.
“He has never expressed to us any ideas of grandiosity or wealth. He truly just wants to quietly live his life without the stigma of being a sex offender and chaos and fear of being homeless and struggling with mental illness.”
According to the University of Michigan’s National Registry of Exonerations, 185 people convicted of felonies in California in the past 40 years were later shown to be innocent, including 39 in the Bay Area.
In addition to state compensation, wrongly convicted former prisoners can sue those responsible for putting them behind bars. Such suits occasionally succeed — at least three in recent years that accused San Francisco of falsifying or concealing evidence, and several similar suits in Los Angeles County, have resulted in multimillion-dollar settlements.
More commonly, however, advocates for the wrongfully imprisoned point the finger at prosecutors, accusing them of withholding crucial evidence. And suits against prosecutors are almost impossible to win.
That was dramatically illustrated by a U.S. Supreme Court ruling in 2011 that threw out a New Orleans jury’s $14 million damage award to a man who had spent 14 years on Death Row for a killing he didn’t commit.
John Thompson was nearing his execution date in 1999 when his lawyers learned that prosecutors had withheld blood evidence that could have cleared him in a related carjacking case. After a judge dismissed that case, Thompson was retried for murder and acquitted, then sued for violation of his right to a fair trial.
Prosecutors are immune under federal law — and the laws of most states, including California — from damages for their conduct in presenting a case. But Thompson’s suit accused the office’s chief prosecutor, Harry Connick Sr., of failing to train his subordinates in their duty to turn over evidence that could help the defense. Connick is the father of the jazz singer Harry Connick Jr.
Jurors found the elder Connick derelict and awarded Thompson $1 million for each year of his imprisonment. But the Supreme Court said none of the evidence against Connick met the high standard of proving the prosecutor legally responsible for Thompson’s near-execution.
In the 5-4 ruling, Justice Clarence Thomas said Thompson had to show a “pattern” of prosecutorial misconduct that would demonstrate “deliberate indifference” to his rights — and a single failure to disclose evidence wasn’t enough.
Such legal barriers exist because “you want to protect prosecutors from these lawsuits, even though you can point to these awful cases,” said David Levine, a law professor at UC Hastings in San Francisco. Society has chosen to accept the possibility of erroneous convictions, he said, “in the name of making sure that these public servants are not deterred from doing what they have to do.”
The only available remedy for a prosecutor’s misdeeds, he said, is the “inadequate compensation” the state offers to
“I want to find housing, enjoy my life. I’m figuring out what tomorrow will be, and the next day.” Glenn Payne, who spent 13 years in prison based on evidence that has since been discredited
those who can demonstrate their innocence.
The door is a little more open for suits accusing police of evidence-tampering that led to wrongful convictions. Officers, and the city or county that employed them, can be held responsible for violating rights that were so “clearly established” that any competent officer would have been aware of them.
In one such case, John Tennison and Antoine Goff won settlements totaling $7.5 million from San Francisco in 2009 after spending nearly 14 years in prison for murder.
Judges freed both men in 2003 after finding that two police investigators — one of them Earl Sanders, later the chief of police — had concealed evidence that included another man’s confession to the murder. The state victims board denied compensation, saying the men had failed to prove their innocence, but federal courts ruled that police had knowingly violated their rights, clearing the way for a settlement of their civil rights suit.
Tennison’s lawyer, Elliot Peters, said the proceedings took five years while the city argued that its officers were legally immune for their actions and appealed every unfavorable ruling. When he and his colleagues went to Minnesota to question the man who had confessed, Peters said, “lawyers for the city were trying to work with the guy to get him to take the Fifth (Amendment), deny he was truthful in making the confession.” That man was never prosecuted, Peters said. He described the Victim Compensation Board as a “kangaroo court.”
In another case, the city agreed in 2014 to pay $3.5 million to Caramad Conley, who spent 18 years in prison for a double murder before a judge overturned his convictions in 2010.
The judge found that the prosecution’s main witness, who testified that Conley had confessed to him in jail, had been paid thousands of dollars by San Francisco police — and that Sanders, the lead investigator, sat silently while the witness told jurors he had never been paid. Conley was freed after prosecutors decided not to retry him.
However, courts have established a shield for law enforcement officers that is “not an easy thing to overcome,” said attorney Ron Kaye, who represented two defendants in Los Angeles County cases who received multimillion-dollar settlements when their murder convictions were overturned. He said an advocate must show that police provided evidence that they knew was false, or knowingly withheld evidence that could have cleared the defendant.
As for cases like Payne’s, the Northern California Innocence Project says the now-discredited hair-matching evidence that led to his conviction was used to convict nearly 300 defendants in Northern California, eight of them based on expert testimony by the same criminalist who testified against Payne. The project is tracking those cases down and hoping to reopen them.
Those inmates and former inmates may be able to clear their records. Financial compensation seems like a long shot.
When prosecution witnesses are responsible for a wrongful conviction, a lawsuit would require proof of intentional deception, and “not just that they made a mistake,” said Starr, the Innocence Project’s executive director.
“If the science just was wrong and you relied on it in good faith,” said Kaye, the Los Angeles attorney, “more than likely there’s no liability. It’s a travesty of justice.”