Seth — 
August 31, 2009 @ 2:00 PM — 
Last week, an administrative judge denied exoneree James Richardson compensation after she somehow determined that Mr. Richardson had not proved his actual innocence of the poisoning of his children. In 2008, when the legislature passed their flawed “automatic” compensation scheme, we aggressively advocated against the bill because we knew that the adversarial process in the bill for “proving” actual innocence, which is triggered by prosecutorial opposition to the claim, would be unworkable. It would require a person to essentially relitigate their case where they now have the burden to meet a standard that is higher than that which the prosecutor must meet to convict.
Courts are not designed to determine actual innocence. In fact, the term “actual innocence” has no legal meaning at all. Hell, in some DNA cases, the prosecutor is the only person on earth who remains blind to the truth despite conclusive scientific evidence of innocence. What we are left with is a situation not where an individual’s actual innocence determines compensation. After all, James Richardson is actually innocent. Janet Reno, former State Attorney for Miami, led the charge in favor of his exoneration. Instead, the only people who get compensated are those who the prosecutor agrees should be compensated.
So our system of redress depends not on facts or what courts and prosecutors have done before but on whatever feeling is in the prosecutors gut when the compensation claim is filed. If the prosecutor feels like they were steamrolled during the postconviction process or they just think that they were not treated fairly by the Florida or United States Supreme Court, they can have a second bite at the apple to victimize the wrongly incarcerated individual one last time.
We told the legislators that their fancy compensation scheme wouldn’t work. Now comes the hard work of changing it to something that will.
Related posts:
- Bill Dillon Compensation Hearing This Morning This morning in Tallahassee, FL William Dillon’s attorneys will present a case for compensation for his wrongful conviction and incarceration,...
- Tallahassee Democrat asks for compensation for Dillon Not sure how I missed this article this morning. The Democrat ran an editorial decrying the Victims of Wrongful Incarceration...
- Florida Newspapers Lining Up to Endorse Exoneree Compensation In the last week, three of Florida’s largest newspapers have stepped up to the plate and affirmed the opinion of...
- Just Another Note on Exoneree Compensation While we don’t have any polling on the issue of compensation for exonerees, every time I talk to an average...
- Press Release: Innocent Man Accepts Compensation For Wrongful Incarceration Innocent Man Accepts Compensation For Wrongful Incarceration Leroy McGee Holds Press Conference; Vows to Fight for Reform of State Compensation...
- New York bill could help the wrongfully convicted This article from the New York Times about the recent exoneration of Fernando Bermudez talks about a bill recently presented...
Hello, Seth — my op-ed on this topic will be published later this week, and you are quoted in it. One issue: There is a legal definition for “actual innocence.” It’s in Bousley v. United States and was written by Justice William Rehnquist:, in language that hearkens back to Jiminy Cricket: “Actual innocence means factual innocence not mere legal insufficiency.” Bousley’s appeal was based on a false confession he made to a gun charge, and relied on a second U.S. Supreme Court decision (Bailey) that was made concurrent with his 1998 case for appeal that defined what it meant to “use” a firearm. Since Bousley did not understand the charge, or all its implications, the plea was ruled unintelligent and since the court’s duty was to find the truth, his conviction on that charge was overturned.
If Richardson’s compensation case does nothing more (and I hope it does) it will be to refine the meaning of “actual innocence,” and establish what constitutes
“sustantial and verifiable evidence” of actual inocence for any victim of the criminal justice system who is wrongly imprisoned — in Mr. Richardson’s case for 21-plus years.