After the door opens
October 20, 2008
Evan Zimmerman was convicted of homicide, but with the help of the Wisconsin Innocence Project (WIP), he convinced the Wisconsin Court of Appeals to overturn the conviction. On retrial, an Eau Claire judge dismissed all charges against him. Zimmerman was released in April 2005, after three years’ incarceration.
Two years and two months later, Zimmerman, age 61, died of cancer.
Liz Webster, of the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University in New York City, says the only other state with a statute that caps relief at a lower sum is New Hampshire, at $20,000. This compares to Massachusetts, which allows exonerees to recover up to $500,000.
Second, the petitioner’s standard of proof is too onerous. “It’s almost like you have to prove a negative,” says Findley. “It’s possible if there was DNA evidence, but what if you don’t have that? You essentially have to prove the state had no evidence against you. So there are a lot of people who don’t even bother.”
Delaney, likewise, adds that this is always the stumbling block in cases involving false confessions. That initial “cooperation” with police means the petitioner did not maintain his or her innocence throughout, but rather, he or she “contributed” to bring about the conviction.
Third, the statute offers no other types of support or services for exonerees, such as vocational, educational, health care and psychological counseling or housing assistance.
Findley finds it astonishing that parolees — persons who actually committed the crimes for which they were incarcerated — have access to this type of help, but there’s no similar safety net for the innocent.
Webster says there’s a growing trend for states to amend their statutes, or newly enact them, to provide these services. In both Massachusetts and Virginia, for example, among the services available to exonerees is tuition to attend one of the state universities.
Sullivan emphasizes the need for psychological treatment for exonerees. Post-Traumatic Stress Disorder and/or panic attacks are very common among them. Zimmerman, for example, was never diagnosed with agoraphobia — he never received mental health treatment after his release because he had no employment-related health insurance, or other means to pay for that. But Sullivan has no doubts that that would’ve been an expert’s finding, because only after his imprisonment, he had extreme difficulty being outdoors for any length of time.
Madison lawyer Robert Hunter chairs the Claims Board, and serves as the representative of the attorney general, J.B. Van Hollen. He says he hasn’t spoken to Van Hollen about his position on whether sec. 775.05 needs to be amended, and therefore cannot offer an opinion.
Other legal options for exonerees are to bring a civil wrongful-conviction or civil rights Sec. 1983 lawsuits. Those are long shots as well. Zimmerman, for example, sued the Eau Claire Police Department in federal court. The case was dismissed in 2006.
Can Proposed Reforms Succeed?
Findley and others have had preliminary discussions with various members of the Wisconsin Legislature about the statute’s infirmities. They’re hopeful they’ll convince lawmakers to introduce corrective legislation.
It would seem that no one could oppose better helping those who have been wronged so seriously by the state. But, because a change in the law would require spending more taxpayer money in tight economic times, and because the exonerated are few in number,
and are mostly poor, undoubtedly some legislators wouldn’t support it, says Findley. “I think perhaps there might be some underlying fears that these are ‘bad people’ because they were convicted. But that’s just not a fair way to look at it.”
State Sen. Lena C. Taylor, D-Milwaukee, chairs the Senate’s Judiciary and Corrections Committee. Taylor, an attorney, says, “A review of the compensation levels for persons wrongfully incarcerated in certainly past due. The Judiciary Committees in both houses will need to commit themselves to a serious review of those statutes, and be prepared to have a constructive dialog on the subject, including its implications for our state’s budget.”
Since the WIP’s proposed changes to the law are still in the very early phase, Mark Hersh, who chairs the Criminal Law Section of the State Bar of Wisconsin, says his board has not yet discussed the issue or determined whether it will take a position. Because the board and section membership is so diverse, to include many prosecutors, he cannot predict what the board might decide.
Hersh, of Mark Hersh Law Office S.C. in Glendale, can say, for his part, that he believes the changes are “long overdue.”
On a related note, Delaney says that legislation was also introduced to prevent what happened to Zimmerman in his job search — the rejection of his application based on the WCCA search.
Rep. Robin Vos (R-Racine), who chairs the Assembly’s Special Committee on the Expunction of Criminal Records, sponsored a bill to require the director of state courts to remove a case involving a felony from the WCCA within 120 days after being notified that the case or charge has been dismissed, a not-guilty finding, or if the case is overturned on appeal and dismissed. The bill did not pass.
Vos’s staff says he plans to reintroduce the bill, after the fall election. It might not take the exact same form, but the goal will be the same.
|Putting Broken Lives
||Life After Exoneration