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Tough Luck
for the
INNOCENT MAN
03-32
KEVIN GREEN After 16 years behind bars and a total compensation award of $10,000, he can only hope his fortunes will change. Meanwhile, he calls bingo for the local Marine Corps League in his off-hours.

As scientific breakthroughs help overturn more convictions of wrongly imprisoned people, the new crime is how little their lost lives are worth

BY MICHAEL HIGGINS
It was a crime that cried out for retribution: A young woman, nine months pregnant, beaten savagely with a two-by-four, raped and left for dead. In a coma for days, she barely survived. Her baby did not.

In 1980, a jury in Santa Ana, Calif., found the woman's husband, Kevin Green, guilty of that crime. The retribution was immediate and severe.

A judge sentenced the 22-year-old Marine corporal to 15-years-to-life in prison and shipped him to San Quentin. His existence there was brutal. All around him: fights, stabbings, arson. The inmates, not the guards, seemed in control. As a convicted child killer, Green was marked for special abuse. For his own safety, officials transferred him to another prison. Life there was less dangerous but no less ugly. He considered suicide.

Three, five, eight years passed. The outside world receded. Green lost contact with friends. His daughter from his first marriage grew up without him. Three grandparents died. His family in Missouri spent tens of thousands of dollars on lawyer bills and prison visits. They took out a third mortgage on their home.

After 10 years, Green became eligible for parole. But officials wanted to see contrition, a show of remorse. Six more years passed. All Green would tell them, again and again, was that he was innocent.

What state officials know now is this: Kevin Green was innocent.

The man who attacked Green's wife is named Gerald Parker. A serial killer dubbed the "Bedroom Basher," Parker confessed in 1996. Dna tests confirmed his guilt. In October, a jury convicted Parker of the attack and five other murders.


03-17FREEDOM With no job history to speak of, Green now works at a Wal-Mart in Missouri for $7.50 an hour.
Now, Green is finally free. But what does the le-gal system owe him for the mistake that cost him 16 years of his life? The state of California has an answer. In November, it paid Green the maximum compensation allowed under state law: $10,000.

"I describe that to people, and it's kind of a shock," says Green, now 40 and living in Jefferson City, Mo. They ask, " 'Do you mean $10,000 a year or $10,000 a month?' And I say, 'No. $10,000--period.' And they say, 'No, no, no. For 16 years?' "

Small Sums for Lost Lives

A shock, perhaps. But among the wrongly imprisoned, Green's experience is the rule, not the exception. The few who can prove government misconduct may win lucrative civil rights lawsuits. Fewer still may persuade legislators to pass special bills compensating them. But the majority either get nothing or scrape and claw for merely a token sum from state compensation systems.

Only 16 jurisdictions have statutes to compensate the wrongfully imprisoned, and only two of those--New York and West Virginia--do not limit damages. Some caps on compensation, such as California's, are miserly. Green's award, for example, comes to just $638 for each year he spent in prison. New Hampshire's cap is only $20,000. The federal system is stingiest of all, capping payments at $5,000.

Those with the highest limits are Maine, with a $300,000 cap, and Ohio, which awards up to $25,000 for each year in prison plus lost wages, attorney fees, fines and court costs.

The $5,000 federal cap may not sound like such a bad deal to innocent inmates in the 36 states without compensation systems. They are likely to get nothing.

In other contexts, false imprisonment is considered the most grievous of wrongs. In a Maryland case, a security guard at an Eddie Bauer store wrongly detained for about 10 minutes three black teens accused of shoplifting, forcing one to remove his shirt. In 1997, a jury awarded that youth $850,000 for defamation and false imprisonment. The other teens received $75,000 each.

No one knows how many people are wrongly imprisoned. But in the era of dna, the problem is clearly too large to ignore. Dna evidence has exonerated at least 56 inmates, according to the Innocence Project, an advocacy group at Yeshiva University in New York City. Seventy-four innocent inmates have spent time on death row before being cleared, according to the organizers of a national conference in November at Chicago's Northwestern University Law School.

Reformers say it's time for government to start doing right by the wrongfully imprisoned. Mistakes are an inevitable part of running a justice system, they argue. Shouldn't society share the cost of making these people whole?

"What's so shocking from a plain, moral perspective is that we don't take on that responsibility," says Larry Marshall, a law professor at Northwestern University who has represented two innocent men freed from death row. "We let one individual suffer the whole burden. It's absolutely immoral."

Why Lawsuits Fail

If the wrongfully imprisoned believe police or prosecutors trampled their rights on the way to a conviction, they can file civil rights lawsuits under 42 U.S.C. § 1983. But to give law enforcement officers room to do their jobs, the law grants them strong immunity from prosecution.

To win a claim against the police, plaintiffs must prove the officers knew or should have known they were violating a clearly established constitutional right. Prosecutors' decisions about whom to prosecute and how to proceed at trial are virtually untouchable.

In any event, experts say most false convictions aren't the fault of a corrupt police officer or district attorney. They happen because the system breaks down in other, more mundane ways.

Most common is witness error, says C. Ronald Huff, a professor at Ohio State University who co-authored the 1996 book Convicted But Innocent.

"There are just a lot of problems with overreliance on eyewitness testimony," Huff concludes.

Even more than one witness can sometimes by wrong. In 1979, three witnesses identified James Newsome as the man who shot and killed a 72-year-old Chicago grocery store owner. Key fingerprints at the scene didn't match Newsome's. But he was convicted and sentenced to prison for a life sentence.


03-20JAMES NEWSOME Three witnesses swore he shot the owner of a Chicago grocery store. They were proven wrong--15 years later.
New technology eventually helped match the mystery prints to a far more likely suspect, Dennis Emerson, a known killer who was free on parole at the time. Newsome was pardoned and freed, but not until he had spent 15 years in prison.

To win a civil rights suit, Newsome will have to overcome the argument that police merely relied on witnesses who were mistaken.

Other factors that generate false convictions include guilty people who testify against the innocent, inadequate defense counsel, community pressure for a conviction, and honest mistakes by prosecutors or police.

Watching the System Fail

Green's case also illustrates the problem. In 1979, he and his wife, Dianna, were living in Tus-tin, Calif., close to Green's military base. Green says he stepped out one night about 1:30 a.m. for some fast food. When he returned, he found his wife lying bloody and unconscious on the couple's bed, straining to breathe.

The beating damaged Dianna's hearing and sense of smell. For weeks afterward, she had no memory of the attack. Green says he was desperate to help police solve the crime, pestering them with calls and offers of help.

Two months later, two officers told Green that his wife had recovered her memory. She now said Green was the attacker, and the officers believed her. "I told them, 'You guys are out of your minds,' " Green says.

At trial, Green's lawyer tried to show that Dianna was confused about how the attack happened and what weapon was used. The lawyer objected to leading questions that coaxed her through her story. It made no difference.

"The jury figured they're there to find somebody guilty," Green says now, sounding more sympathetic than bitter. "They've got to support the victim."

The verdict was devastating. Green thinks of his father, Frank, a retired Marine Corps master sergeant and 20-year veteran. "He spent two tours in Vietnam to defend this system," Green says. "And he sat there in court, and he watched it fail."

Yet who was at fault? "In Kevin's case, you can't look back on it and say he didn't get his day in court," says Philip Eaton, an attorney in Santa Ana who helped Green apply for his $10,000. "You can't say the police lied. You can say the wife was mistaken."

No clear misconduct means no federal civil rights suit. And in those states with no compensation statute, lawyers for the wrongly imprisoned can find themselves with nowhere to turn.

Paul Casteleiro, a lawyer in Hoboken, N.J., knows the feeling. In 1995, he took on the case of David Shephard--a man who was ensnared in a notorious rape case in Elizabeth, N.J.


03-19PAUL CASTELEIRO He started his own reform campaign, realizing his wrongly convicted client "had nobody to sue."
In that case, two men--one called the other "Dave"--had abducted a woman coming out of a shopping mall. They drove the victim around, raped her, then parked her car near a building at Newark Airport. Shephard, who helped maintain airplanes, worked in the building. The victim identified him as one of the rapists.

Shephard was 33 years old when a dna test on semen finally proved he was innocent. But by that time, he had spent 11 years--a third of his life--in prison.

Casteleiro had handled these kinds of cases before, working with Centurion Ministries, a Princeton, N.J., group that has freed 19 innocent inmates. He had filed a civil rights suit in one case and sued defense attorneys in the other.

But this was different. Police may have rushed to judgment, but there was no grand conspiracy to get Shephard. "I got his trial record ... and read the whole damn thing," Casteleiro recalled. "He really had nobody to sue."

Legislative Entreaties

With no one to sue, the wrongly imprisoned sometimes take their pleas directly to the state legislature. The results can be dramatic.

In April 1998, the Florida legislature passed a special bill awarding $500,000 each to Freddie Pitts and Wilbert Lee, two black men who wrongly spent 12 years in prison. Relying on coerced confessions, all-white juries had convicted them of murdering two white gas-station attendants.

But the Florida case itself shows how haphazard the use of special bills can be. Florida Gov. Rubin Askew pardoned Pitts and Lee in 1975. Legislators then wrangled for more than 20 years over whether to award compensation.

When the bill finally passed, it happened largely because Republicans in the Florida House needed to curry favor with black Democrats who backed the bill, according to several newspaper accounts.

In any event, the special bill process favors people with political clout and lobbying skill. The wrongfully imprisoned aren't likely to have either.

Among legislators, some have recognized the problem. Ohio Rep. Vernon Sykes, D-Akron, recalls sitting in a legislative hearing room in the early 1980s, listening to the tale of William B. Jackson.

Jackson had been convicted years earlier in a frightening series of rapes in the Columbus area. He served five years in prison before police found the real rapist: Dr. Edward Jackson, a man with a similar name and appearance.


03-18WILLIAM JACKSON Ohio gave him $72OK for five lost years.
Police found a list of the rape victims in the doctor's home, and witnesses against William B. Jackson acknowledged their mistake.

Sykes thought the state owed William Jackson, and it did pay, eventually awarding him $720,645. But was this something for a roomful of politicians to decide? "I just felt very uncomfortable," Sykes recalls. "People shouldn't have to come to us to make pleas for consideration on individual cases."

In 1984, Sykes sponsored a bill to allow the wrongfully imprisoned to sue the state in the Ohio Court of Claims. The law allows the claimant to recover $25,000 for each year in prison, plus lost wages and attorney fees.

The new system is an improvement, says osu's Huff, who helped draft the statute. "In the old days, most people got nothing because they couldn't get a special bill through," he says. "Then somebody would get a million dollars, which the state doesn't like because they can't budget for it."

In New Jersey, lawyer Casteleiro launched his own reform campaign, sending letters and newspaper articles about his client's plight to all the state's legislators. Eventually a bill passed that al-lows the wrongfully convicted to collect $20,000 or twice their last year's income, whichever is greater, for each year spent in prison.

He then sued for Shephard under the statute and settled the case for $240,000.

Flood of Claims Unlikely

Nationwide, however, there is no real push for more compensation laws. Nor is there a movement to raise the caps on compensation in states that have statutes.

That frustrates advocates for the wrongly imprisoned. Either legislators don't find the issue important, believing false convictions to be exceedingly rare. Or conversely, they worry that allowing the wrongly imprisoned to sue would cost their state too much money.

A flood of wrongful imprisonment claims is not likely, reformers argue. Virtually all compensation statutes require that claimants be found factually innocent. Usually, that means a pardon from the governor. An overturned conviction isn't enough.

States that have compensation statutes have fielded relatively few claims, aba Journal research has found. In part, that may be because tight-fisted damage caps discourage claims. Only two states, New York and Ohio, appear to have paid out more than $1 million in total damages.

The current system encourages bitter, adversarial litigation, argues Marshall of Northwestern. Lawyers for those wrongly imprisoned may feel their only option is to charge, guns blazing, into a civil rights suit. Police and prosecutors, naturally, get defensive. They deny any and all misjudgments instead of honestly asking themselves what went wrong.

"Let's get away from the blame game," Marshall says. "It would be so much healthier if we didn't have to focus on who did what wrong and instead focused on how to help these people."

In part, this is a case of law lagging behind technology, says Adele Bernhard, a law professor at Pace University in White Plains, N.Y.

In the pre-dna era, judges might overturn convictions, but defendants could almost never win a clear exoneration. If the defense were to discover a new witness, for example, there would always be some doubt about whether the new witness was more credible than the old one.

"What's different now is that we really do know ... with scientific certainty" that an inmate is innocent, says Bernhard, who has written an article on compensation statutes that will appear this fall in the University of Chicago Law School Roundtable. "It really makes our obligation clear."

A New and Difficult Life

Green has been free now for almost three years. With no job history to speak of, life on the outside hasn't been easy. He works at Wal-Mart, making $7.50 per hour.

The state of California, local prosecutors and police have all cleared Green. But his former wife Dianna continues to believe he played a role in the attack. She is pursuing a $6 million default judgment she received in a civil suit stemming from the incident.

Green has spoken about his experiences at colleges and appeared on talk shows. Movie producers at Disney have expressed interest in his story, he says.

Compensation laws are "a flaw in the system, right now, that can be fixed," Green says. And in California, state Rep. Scott Baugh, R-Huntington Beach, agrees. Baugh calls Green's case a travesty and says he may look into rewriting the state's $10,000 cap.

In December, Baugh introduced a special bill that would compensate Green individually. He says that $1 million might be appropriate, but the bill needs a two-thirds vote to pass.

Learning From Our Mistakes

No matter what happens in the legislature, Green says that he is not bitter. "I did that--for the first three or four years I was in prison," he says. "I was angry at the system. I was angry at my lawyer. I was angry at God."

Now, he's taking his ordeal, well, like a Marine. Last March, the government changed his military record to reflect an honorable discharge. At home in Jefferson City, Green joined the local Marine Corps League. He is now sergeant-at-arms for the group, which appears in parades and does charity work.

All through his 16 years in prison, Green says, his father carefully tended to the flagpole in his family's front yard. Passersby would see the American and Marine flags, flapping in the breeze.

"The justice system, in our eyes, is like a child," Green says. "If your child makes a mistake, what do you do? Do you throw it away? ... Or do you do things to try to help it learn from its mistakes?" *


Some Pots of Gold are Full
Of Only Chump Change

Statutes to compensate the wrongly imprisoned are on the books in 14 states, the District of Columbia and the United States. States pay few claims, however, and caps in most statutes keep awards low.

* California
Damages: Limit of $10,000.
Recent history: The state paid five of 20 claims since 1981. The awards total $50,000.
* District of Columbia
Damages: No limit. No punitive damages.
Recent history: A case in the late 1970s served as an impetus for the law. No other claims paid.
* Illinois
Damages: Current cap of about $140,000 for those imprisoned more than 14 years and attorney fees up to 25 percent of the award. The limit will increase with the cost of living.
Recent history: Since 1986, seven claims paid. The awards total $863,000. Three cases remain open.
* Iowa
Damages: Limit of $18,250 for each year in prison, plus lost wages up to $25,000 per year and attorney fees.
Recent history: No claims filed since the law took effect in 1997.
* Maine
Damages: Limit of $300,000. No punitive damages.
Recent history: Officials know of no payments.
* Maryland
Damages: Limited to actual damages.
Recent history: Two claims paid in the past 15 years. The awards total $550,000.
* New Hampshire
Damages: Limit of $20,000.
Recent history: Since 1993, two cases involving miscalculated sentences settled for a total of $27,000. A third case is pending.
* New Jersey
Damages: For each year of incarceration, limit of $20,000 or twice the claimant's annual income before prison, whichever is greater.
Recent history: The David Shephard case, which prompted the 1997 law, settled for $240,000. No other awards paid.
* New York
Damages: No limit.
Recent history: Since 1984, six of 62 claims paid. The awards total $2.7 million. Another 33 claims are pending.
* North Carolina
Damages: Limit of $10,000 for each year in prison, with a total cap of $150,000.
Recent history: Three of four claims paid since January 1997. The awards total $135,890.
* Ohio
Damages: Limit of $25,000 for each year in prison, plus lost wages, attorney fees, fines and court costs.
Recent history: Since 1988, 15 of 20 requests for compensation paid. The awards total $1.77 million.
* Tennessee
Damages: Limited to actual damages. No attorney fees.
Recent history: In 1983, the state granted an award of $500 a month, for life. Officials know of no other claims.
* Texas
Damages: Limit of $25,000 for pain and suffering, with a total damages cap of $50,000.
Recent history: No claims paid since the statute passed in 1965. Three claims rejected since 1990.
* West Virginia
Damages: No limit.
Recent history: Since enactment of the law in 1987, two claims paid. The awards total $55,000.
* Wisconsin
Damages: Limit of $5,000 for each year in prison, with a total cap of $25,000, plus attorney fees. Claims board can ask the legislature to award more.
Recent history: Two of seven claims paid since 1976. The payments were $23,891 and $7,459.
* United States
Damages: Limit of $5,000.
Recent history: Two claims paid since 1992, both for $5,000.
Sources: Statutory information from Adele Bernhard, Pace University law professor; claims histories from ABA Journal research of state and federal claims courts and agencies.


Hard to Put a Price on Hard Time

What is the proper compensation for time wrongly spent in prison? Or, put differently: What is freedom worth?

That's a formidable philosophical question, made more difficult still by the fact that people on the outside have a hard time understanding the corrosive stress of prison life.


03-21
Inmates live by their own social code.
James Newsome, wrongly imprisoned for murder, served his time at maximum security prisons in and near Joliet, Ill. Inmates set his cell on fire, and he was almost killed, says his attorney, Locke Bowman, who is director of the MacArthur Justice Center at the University of Chicago.

Newsome now works as a part-time assistant for lawyers in Chicago. But when he emerged from prison at age 39, he had no home, no job, no work history--not even a driver's license. Says Bowman, "I don't think it's crazy to say $100,000 for each year--as a cap."

In the toughest prisons, inmates live by a code that tolerates no signs of disrespect, says Kevin Green, who was incarcerated for 16 years for a crime he didn't commit. Small-stakes disputes escalate wildly. "It's a whole different society," he says. "There are people there dying over a pack of cigarettes, a candy bar."

At San Quentin, Green had the added pressure of being a target. He had been convicted of attacking his wife when she was pregnant and murdering her full-term fetus.

By inmate standards, the crime was inexcusable, "right up there with child molesting," Green says. "They may be murderers. They may be rapists. But they do not want to be associated with baby killers."

Green recalls hunting down a fellow inmate one day to try to take back a stolen jar of coffee. Suddenly, on the second tier of the cell block, five inmates surrounded him. He was in trouble.

He heard the sound of a shotgun being cocked. A prison guard was on the scene. He was saved. But the ambush attempt clearly was not about coffee, Green says. "They were there to mete out some justice for the dead baby."


Politics and Reform Often Clash

BY MICHAEL HIGGINS
The stories of innocent people who have spent five, 10 or 15 years in prison are deeply moving. But can those stories move compensation bills through state legislatures?

Not without help, say lawmakers who have sponsored compensation statutes.

When Ohio state Rep. Vernon Sykes, D-Akron, first proposed a wrongful compensation statute, some fellow legislators were cool to the idea, he recalls.


03-16REP. VERNON SYKES His compensation bill was a hard sell to Ohio legislators. "They're very reluctant to do anything that may imply they are soft on crime," he says.
"They're very reluctant to do anything that may imply that they are soft on crime," he says. The wrongfully imprisoned person "is still tarnished by his or her incarceration."

The bill passed in 1986, but not without some cajoling. "Most of us are tough on crime," Sykes says. But "imagine how much of a crime it is to take someone's freedom away."

Legislators in New Jersey also had misgivings when state Sen. Gerald Cardinale, R-Cresskill, co-sponsored a compensation bill. Cardinale was touched by the story of David Shephard, who spent 11 years in prison for a rape he did not commit.

First some senators imagined that inmates would sue the state for millions of dollars after being being set free on legal fine points. Then the rape victim protested the bill. She had not let go of the idea that Shephard was somehow involved.

Still, Cardinale and other sponsors managed to overcome the objections, and the legislature passed the bill overwhelmingly in 1997.

"The Republicans and the Democrats came together and worked this out," says Shephard's lawyer, Paul Casteleiro of Hoboken.

In Illinois, the compensation issue came to a head with the case of James Newsome, who was cleared of murder after spending 15 years in prison. In 1995, when the governor pardoned Newsome, the Illinois statute capped compensation at $35,000.

State Rep. Barbara Flynn Currie, D-Chicago, sponsored a bill to raise the cap. Eventually, the legislature settled on a new formula that would allow Newsome to collect $140,000.

"I would have liked them to go further," says Currie. "There was a lot of anxiety. There was a lot of suspicion: How is this going to be used by the political people in the next campaign?"

Supporters managed to sell the reform as a cost-of-living adjustment; the old cap had been put in place in the 1940s. It also didn't hurt, Currie says, that they placed the provision inside a larger bill that included tough-on-crime measures.


Michael Higgins, a lawyer, is a reporter for the aba Journal. His e-mail address is higginsm@staff. abanet.org.




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