Wisconsin Lawyer
Vol. 83, No. 2, February 2010
by Mary C. Delaney, Keith A. Findley & Sheila Sullivan
In 2004, Brother David Sanders, a teacher and Franciscan monk, was charged with molesting a young boy 20 years earlier.1 On Dec. 6, 2006, after two hours of deliberation, a Milwaukee County jury found Sanders guilty of sexual assault and the court sentenced him to 15 years in prison.2 Sanders served five months of his sentence before new evidence identified another Franciscan monk as the perpetrator. Recognizing that the wrong man had been convicted, Milwaukee prosecutors filed a motion seeking Sanders’s release from prison.3
For people who read about wrongful convictions in newspapers or watch programs about them on television, the story almost always stops with the moment of joy they imagine, or sometimes see, when a man or woman walks out of a courthouse or prison into freedom. What happens to exonerees after that moment is rarely depicted in the media, however – perhaps because stories of life after release raise so many difficult questions.
David Sanders won his freedom more quickly than most exonerees,4 but, in the years between arrest and release, he suffered emotional trauma, loss of reputation, and financial ruin. Sadly, Sanders’s experience is not unusual. Since 1989, 249 people have been exonerated by postconviction DNA testing.5 Hundreds more have been exonerated by other types of evidence.6 Most of these exonerees lose everything in their legal battles.7 Years of incarceration steal from them the opportunity to save for retirement. After release, some are unemployable. Most never recover preconviction income levels.8 As the New York Times reported, exonerees “struggle[] to keep jobs, pay for health care, rebuild family ties and shed the psychological effects of years of questionable or wrongful imprisonment.“9
Because he is a Wisconsin exoneree, Sanders was eligible to apply for compensation from the State of Wisconsin Claims Board.10 With help from his attorney, Byron Lichstein of the Wisconsin Innocence Project at the U.W. Law School,11 Sanders petitioned for $5,000 compensation, the maximum statutory compensation available to him. Despite Sanders’s financial straits – the bank was about to foreclose on his home – he had to wait months before the Claims Board heard his petition and even longer before he received the meager sum he was entitled to. Sanders’s claim for compensation was easier to resolve than most because the prosecutors in his case agreed he was innocent.
Most Wisconsin exonerees are less fortunate than Sanders. In 2001, Evan Zimmerman was convicted of murder in Eau Claire. He served more than three years of his sentence, during which time he suffered a stroke. In August 2003, the Wisconsin Court of Appeals reversed his conviction, finding that his trial counsel had provided constitutionally inadequate assistance by failing to introduce important evidence of Zimmerman’s actual innocence. Zimmerman spent the next two years facing the prospect of retrial because he refused to agree to a deal in which he would plead guilty and be released. In 2005, four days into his retrial, the state conceded it could not prove guilt and dismissed all charges with prejudice. Zimmerman died of cancer two years later without receiving any compensation for his wrongful conviction.
Wisconsin’s newest exonerees – Chaunte Ott, freed after 13 years in prison when DNA testing not only excluded him but also implicated Milwaukee’s alleged serial killer, Walter Ellis;12 Robert Lee Stinson, freed after more than 23 years in prison when the bite-mark evidence used to convict him was shown to be erroneous, and DNA from saliva on the victim’s shirt excluded him;13 and Forest Shomberg, freed after more than six years in prison – each spent more time wrongfully imprisoned than either Sanders or Zimmerman.14 Whether any of them will receive any compensation for their collective 42 years of wrongful incarceration is unclear. What would count as adequate compensation for their injuries is even more unclear.
To understand the hardships faced by Wisconsin exonerees after their release from prison, it is necessary to understand both the injuries caused by wrongful conviction and the failure of current laws and policies to address these injuries in any systematic way.
The Injury of Wrongful Conviction
The Effects of Wrongful Incarceration. The most obvious injury associated with wrongful conviction is wrongful incarceration.
Imprisonment has powerful effects.15 Prison rules tend to create a dependence on institutional structures. To survive in prison, some inmates embrace aggression to avoid victimization. Others become isolated and withdrawn, exhibiting behavior resembling clinical depression. Some researchers think incarceration causes a form of post-traumatic stress disorder.16
Wrongful incarceration compounds these typical effects of imprisonment in ways that are only beginning to be understood. Anecdotal evidence suggests that wrongfully incarcerated individuals experience rage and institutional mistrust while imprisoned.17 The abruptness with which exonerees are released creates further difficulties. Inmates completing their sentences expect release and are provided with services to prepare for it. Exonerees may be set free suddenly, after years of struggle, with no support or preparation.
That was Chris Ochoa’s experience in 2001. After DNA testing identified the real culprit in the crime for which he was convicted, Ochoa was dramatically – and suddenly – released from prison.18
Ochoa, who now lives in Wisconsin, spent 12 years in a Texas prison for a rape and murder he did not commit. Before conviction, Ochoa had been a college student with no criminal record and dreams of a bright future.19 After exoneration, he had to begin imagining his future all over again. Ochoa received no immediate compensation to help him with that task. A private donor made it possible for him to return to college, but Ochoa also needed counseling and treatment. He had to shoulder the burden of paying for those himself.
Evan Zimmerman experienced many of the same problems as Ochoa. Despite avoiding what he called his nightmare of dying in prison, Zimmerman found it difficult to pick up the pieces of his life after he was released.20 He suffered from depression, agoraphobia, and a fear of being wrongfully convicted again. Those psychological problems were compounded by physical problems caused by the stroke he suffered while in prison. Without state aid, Zimmerman struggled to find volunteer counselors and pro bono advocates to help him secure medical and other
benefits.
The story of Evan Zimmerman’s final years underscores the truth that the injury of wrongful conviction is not undone by exoneration alone. The effects of wrongful incarceration exacerbate the effects of wrongful conviction in ways Wisconsin law and policy do not address.
Systemic Responses to Wrongful Convictions
Financial Compensation. For most exonerees, financial compensation for their injuries is unavailable or woefully inadequate. In theory, any exoneree might seek civil damages by suing the state or the police. But state-law-based civil actions are generally unavailing because the state has sovereign immunity, and police, prosecutors, and judges also are generally immune from liability for damages. Theoretically, a civil rights action under 42 U.S.C. section 1983 might allow an exoneree to win a large sum of money from a city or from public employees. But such awards are rare because they require proof that a state actor intentionally violated the exoneree’s constitutional rights.
As an alternative to civil litigation, Wisconsin and 27 states, plus the District of Columbia,21 provide a statutory right to compensation for “innocent convicts.”22 In the case of Wisconsin, however, the statutory remedy is almost as unsatisfactory as the illusory remedy of a civil rights lawsuit.23
The Wisconsin Claims Board initially determines whether an exoneree qualifies for compensation.24 Wisconsin’s compensation statute limits payment to $5,000 per year of wrongful imprisonment: total compensation is capped at $25,000.25 This is among the least generous of the states that offer compensation. Annual compensation offered by other states and the federal government ranges from $15,000 to $100,000.26
In Wisconsin, statutory compensation does not cover even the most direct financial losses, such as lost wages, produced by wrongful incarceration.27 Worse, that small financial payment often is denied because Wisconsin’s compensation statute imposes additional burdens on petitioners.28
To receive compensation, exonerees must prove they are “actually innocent” of the crime for which they were convicted.29 That burden is difficult, if not impossible, to meet if exoneration does not involve dispositive DNA evidence or if the real perpetrator has not been identified. This burden reflects the state’s desire not to compensate individuals who may not be actually innocent but rather were “merely” wrongfully convicted. But in our criminal justice system, there is no legal finding or status of “innocent” or “exonerated.” The criminal justice system only determines which defendants have been proven guilty beyond a reasonable doubt and which have not. The most that can be said is that the state either could prove guilt beyond a reasonable doubt or it could not. If not, the defendant is exonerated.
Wisconsin’s compensation statute also requires legally exonerated individuals to prove innocence by the heightened standard of “clear and convincing” evidence, rather than the preponderance-of-the-evidence standard applicable to most other claims for compensation or civil remedy. But proving innocence – proving a negative – can be very difficult.
After satisfying these heavy burdens, an exoneree has one more hurdle – proving “he or she did not by his or her act or failure to act” contribute to the wrongful conviction.30 While this burden sounds reasonable, experience has shown false confessions play a significant role in about 25 percent of wrongful convictions.31False confessions often are made by the most vulnerable defendants: juveniles and adults with mental and emotional disabilities.32 Lacking any provision allowing the Claims Board to consider evidence of coercion, mental capacity, or age, Wisconsin’s compensation law arguably bars compensation in all false-confession or guilty-plea cases – no matter how suspect the conditions that produced that confession or plea.33
Beyond Financial Compensation: The Tools for Remaking a Shattered Life. Wisconsin’s compensation statute authorizes no other form of compensation for wrongful conviction and incarceration. The stories of two other Wisconsin exonerees reveal the significance of that gap.
Mike Piaskowski grew up in Green Bay and began working at a local paper mill. After 23 years at the mill, Piaskowski was earning roughly $53,000 annually plus benefits. He had a “wonderful marriage with a beautiful wife and daughter.” His family owned a home, a new car, a truck, a boat, and recreational property up north.34
After his 1995 murder conviction, Piaskowski spent more than five years in prison. By the time his conviction was overturned – on the ground there was no constitutionally sufficient evidence to convict him – he was divorced, bankrupt, and in his 50s. Since then, he has worked at entry-level jobs. His income is less than one-third of what it had been before his wrongful conviction and has been decreasing.35
Fred Saecker was convicted of rape in 1990. In 1996, he was exonerated by DNA evidence. In 2002, the Wisconsin Claims Board concluded he was innocent and granted him the meager compensation available under Wisconsin law. Devastated by his experience, Saecker spent years working with loggers in rural Wisconsin to avoid possible scrutiny of his record. More recently, Saecker has been driving a forklift and continuing to search for more rewarding employment. But years of incarceration put him out of touch with technological developments, limiting his ability to earn.36
As Piaskowski’s and Saecker’s experiences demonstrate, wrongful convictions create damages difficult to repair with money alone. Yet no systems or services currently exist to address those damages.
Wisconsin has many programs designed to help released offenders, who were guilty of their crimes, reenter and become contributing members of society. Ironically, no such help is available to exonerees.37 As the American Bar Association has recognized, “[u]nlike probationers or parolees who may have help navigating access to public services or benefit from reentry plans, the newly released innocent person is simply set free. Job and vocational training, mental health counseling, substance abuse programs, assistance in obtaining housing or food stamps and a monetary stipend sufficient to tide the individual over the first few months of freedom are all possibilities.”38
Other states have begun to address this problem. In 2004, Massachusetts became the first state to enact a compensation statute that creates a mechanism for providing post-incarceration services to exonerees.39 In addition to paying up to $500,000, the law allows courts to grant “state services … reasonable and necessary to address any deficiencies in the individual’s physical and emotional condition.”40 Exonerees also are entitled to tuition reduction at state community colleges and universities. Louisiana’s compensation statute provides a year of job-skills training, medical and counseling services for three years, and education aid for five years.41 Vermont’s compensation statute makes exonerees eligible for 10 years of health care and “any reasonable re-integrative services and mental and physical health care costs incurred between release from prison and the award.”42 Montana,43 Florida, Texas, Massachusetts, Connecticut, and Virginia also offer access to education, and Maryland and Texas provide funding for counseling services.44
Compensation for Lost Reputations – State Public Records. Under Wisconsin law, arrest, conviction, and court records are presumptively public45 and there are no statutory exceptions for exonerees, whether proven innocent or not. Most exonerees thus continue to suffer reputational injuries long after they are released from prison.
An arrest that does not lead to a conviction can be removed from the Crime Information Bureau (CIB) records. Expunging these records is important for exonerees. As free men and women, they want to work, but records showing they were once convicted of rape, murder, or other crimes are not likely to encourage job offers.
Even if an exoneree’s arrest and conviction record is removed from the CIB database, however, the court record remains available on the Web site of the Consolidated Court Automation Programs (CCAP) system. Wisconsin law provides a statutory right to expungement of certain juvenile dispositions and misdemeanor convictions.46 Wisconsin courts have the inherent authority to seal court records when the administration of justice requires it47 and the constitutional authority to reverse the presumption of openness if the public interest requires it.48 However, no precedent exists for using this authority in cases of wrongful convictions – even when absolute innocence is proven.
The ongoing availability of CCAP records means that exonerees who do not tell potential employers about their past risk having their applications rejected for nondisclosure. Exonerees similarly know that potential employers, landlords, and the general public can use CCAP records to make critical decisions based on the knowledge the exonerees were once convicted of a serious crime. Exonerees in Wisconsin and nationwide report ongoing discrimination based on the availability of those records.49
Other states have begun reforming their expungement laws, providing automatic sealing of court records when convictions are overturned.50 Recognizing the injuries associated with the label “criminal,” some states now protect exonerees who do not disclose prior convictions from discrimination based on failure to disclose their wrongful convictions.
Compensation for Lost Reputations – Private Data Vendors. The increase in the number of private data vendors that sell credit and background reports ensures the effect of wrongful convictions will extend beyond the borders of individual states and beyond the remedies available under state law. No federal law requires private vendors to update conviction information in response to postjudgment exonerations.51 Nor is there any obvious mechanism for forcing private vendors to remove any inaccurate information they choose to publish. As access to public records through commercial data vendors continues to expand, the record of a wrongful conviction becomes increasingly inescapable.
The Wisconsin Exoneree Network
After Evan Zimmerman’s death, a biannual program for Wisconsin exonerees was organized in his honor. Attendees at the first program decided a more formal organization would be useful, and so the Wisconsin Exoneree Network (WEN) was created.52 Still in its formative stages, WEN is investigating ways to fund emergency housing for exonerees who have no place to go when they are released from prison, attempting to identify a pool of professionals interested in donating services to exonerees, and actively supporting systemic change. Perhaps most importantly, WEN brings exonerees together to gain strength and insight from the only people who truly understand their experience. By creating a network rooted in common experience, participating exonerees believe they will be able to continue the struggle for justice that began with their wrongful convictions.
Conclusion
Wisconsin’s once-progressive stance on the treatment of wrongfully convicted individuals after exoneration is progressive no longer. The state’s compensation procedure is slow and cumbersome, the burden on petitioners is very high, and the amount and type of compensation available is shockingly inadequate.
But change may be coming. Measures to restrict access to court records about people whose convictions are overturned have been presented recently in both the Wisconsin Legislature and the Wisconsin Supreme Court. Assembly Bill 340 would prohibit entry of case data into CCAP until and unless the defendant is convicted and would require removal of case data on reversal of the conviction. On Feb. 24, 2010, the Wisconsin Supreme Court will hold a public hearing on a State Bar of Wisconsin petition to amend chapter 72 of the Supreme Court Rules to, among other things, clarify and codify circuit courts’ authority to expunge records, including criminal case records of defendants whose convictions are overturned. In addition, in the wake of its 10-year anniversary in 2009, the Wisconsin Innocence Project is working with several legislators on a package of reforms intended to ensure support, including increased financial compensation and assistance with housing, employment counseling, and education for wrongfully convicted individuals.
Together these efforts suggest that Wisconsin may be ready to grapple with a truth that all exonerees know: the problem of wrongful convictions does not end at the prison door.
Endnotes
Wisconsin Lawyer
