Courts remain hostile to wrongly imprisoned seeking compensation |

Courts remain hostile to wrongly imprisoned seeking compensation

Eric Berkowitz

LOS ANGELES (AP) – Herman Atkins spent eight years in a California prison for a rape he didn’t commit.

When prosecutors in Riverside County realized he was the wrong man, they got a judge to release him. But the goodwill ended there – now that Atkins is suing the for compensation for his lost years, prosecutors are fighting him hard.

They have argued heading into his new trial this month that his innocence is irrelevant and should be kept from the jury. Even the DNA evidence that absolved him of the brutal 1986 rape of a Lake Elsinore shoe store clerk – evidence that showed a one in 300 billion possibility of guilt – may carry little weight.

His chances of winning any money for what the 40-year-old son of a California Highway Patrol officer calls a police frame-up that ruined much of his adult life are far from certain.

The issue over what Atkins needs to show to win reflects the hazardous legal landscape facing people nationwide who have been erroneously convicted.

Just being exonerated does not automatically bring compensation: The onus is on the ex-convicts to prove their cases under a patchwork of sometimes tough legal requirements, even in states such as California that have unjust-conviction laws.

Since DNA evidence started clearing convictions in 1989, the compensation issue has become more acute. The new technology has helped to release 144 people nationwide between 1989 and 2003, according to a University of Michigan study. But the law often leaves them and the hundreds of other wrongfully convicted defendants without any other remedy.

“They often have no recourse because our legal procedures don’t accommodate that kind of case,” said Adele Bernhard, a professor at New York’s Pace University School of Law.

“If the police hit Atkins with a flashlight, that’s easy,” Bernhard added. “But if police action results in you getting put in jail for 20 years, the law is far behind.”

Twenty-one states and the District of Columbia allow limited compensation, but many have tight filing deadlines, require pardons and make the exonerees prove they were “actually” innocent, as opposed to being released on a legal technicality.

California allows $100 per day in compensation. But that’s after proving innocence – a challenge many cannot meet, especially when there is no DNA evidence and the government puts up opposition.

Of the 37 California claims that went to a hearing since 2001, only eight have been successful, said Kathleen Beasley, spokeswoman for the state Victim Compensation and Government Claims Board.

Exonerees can sue under federal civil rights laws, but they require proof of deliberate misconduct by police, such as fabricating evidence.

“If the police didn’t do something underhanded, the civil rights laws can’t help,” said University of Pennsylvania Law School professor David Rudovsky. This, plus the difficulty of proving police wrongdoing, leaves only a “distinct minority” able to sue, he added.

And then there is the general resistance to second-guessing convictions, even erroneous ones. In a recent Oklahoma civil rights case involving Arvin McGee, jailed for 14 years for rape until he was exonerated by DNA evidence, the government’s attorney told the jury, “there is no constitutional guarantee that only the guilty will be convicted.” The jury didn’t agree, awarding McGee $14.5 million.

Atkins, who a judge released in 2000, said he had never been to Lake Elsinore before he was arrested. “I just thought it was mistaken identity and would all be resolved,” he said. “Then I realized they were trying to railroad me.”

Riverside County lawyers refused to comment about the Atkins case, citing county policy.

According to court papers filed by Atkins’ attorneys, a detective fabricated a police report implicating Atkins in the rape and suppressed information that favored him. Yet if Atkins can’t prove such misconduct, he’ll be out of luck.

Just getting through nearly five years of hard-fought litigation is an achievement. Most lawyers are hesitant to take on such cases because the costs are so high.

Atkins is represented on a contingency basis by Peter Neufeld, a well-known criminal and civil rights lawyer and co-director of the Innocence Project, a New York legal clinic that works to release prisoners with DNA evidence.

One famously successful case involved an Illinois man named James Newsome.

It took several million dollars’ worth of time and costs to carry Newsome through a civil rights trial after he was pardoned for an Illinois murder. He had served 15 years of a life sentence.

Philip Beck, best known for representing President Bush against Al Gore in 2000, used an innovative technique to get the Chicago jury to award Newsome $15 million.

His team erected a life-sized replica of Newsome’s tiny jail cell in the courtroom. With the mock-up in sight, Beck had Newsome tell “horror stories of what it was like.” Beck then reminded the jury that as bad as prison can be, “it’s a hundred times worse when you know you’re innocent.”

Emotional suffering is usually the main element of damages in wrongful incarceration cases, said Rudovsky, the University of Pennsylvania professor. “The question is, ‘What would I pay to avoid that experience?”‘ he said.

Atkins said no amount of money could make up for his lost time with his sons or his mother, who died soon after his release.

He said he wants his case to change a police culture of improper practices. “It’s not a mistake,” he said referring to his conviction. “It’s a way of life and that way of life has to change.”

Oregon prosecutor Josh Marquis agreed that convictions based on government misconduct should be compensated, but said such cases might be a slippery slope.

“What do we do when we let someone out of prison early and they go kill someone? Should the family come after the government and say pay me?” he asked. “The government doesn’t make such payments and they probably shouldn’t have to.”

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