Wisconsin Law Journal

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.

The lead attorney for his retrial, Keith A. Belzer of Devanie, Belzer & Schroeder S.C. in La Crosse, says Zimmerman did reconnect with his family, post-prison. He spoke proudly to Belzer about his grandson’s accomplishments on the high school football field.

But despite that family support, Zimmerman faced many daunting challenges.

He’d suffered a stroke in prison, which substantially limited his job opportunities,in addition to the fact that he had a three-year gap in his employment record that was difficult to explain. After being rejected for a janitorial job, the prospective employer, who’d used the Wisconsin Circuit Court Access system as a background check, told him it was due to the conviction. When Zimmerman explained that it had been overturned and that the charges had ultimately been dropped, the man’s response was, “Well, you were convicted. You must’ve done something wrong.”

Belzer says Zimmerman never did find a job before he became too ill to work. He rented a modest apartment, week-to-week. He also had difficulty obtaining health care. He rode a bicycle because he couldn’t afford a car.

Whenever he saw Belzer, Zimmerman always promised to take him and his family out to dinner, to thank him for his pro bono service. But because he couldn't find a job, he always had to say that it would happen very soon. Belzer would've loved to celebrate an employer giving Zimmerman a chance to prove himself, restoring some of his dignity, and perhaps making him eligible for employment-related health insurance.

But it never happened.

Attorneys Mary C. Delaney of Monona and Sheila Sullivan of Legal Action of Wisconsin Inc. were University of Wisconsin law students working with the WIP who helped Zimmerman obtain relief from the Court of Appeals. Both befriended Zimmerman during the representation, and kept in touch once he was released. The way he struggled was nothing short of tragic, in their eyes.

They, and others affiliated with the WIP, say Zimmerman’s story, post-exoneration, is not unique. In fact, one of the WIP co-directors, Professor Keith A. Findley, says, to the best of his knowledge, everyone freed with its help has encountered significant hurdles in their quests to reintegrate into society successfully.

WIP has set forth on two courses of action to remedy that situation for current and future inmates who are exonerated, referred to as exonerees. The first is to push for a change in the law governing the civil relief available to exonerees. The second is to build up a newly created network of exonerees and those who want to help them.

Administrative Remedy Needs Remediation
Findley served on the bipartisan Criminal Justice Reforms Task Force from 2003 to 2005, which spearheaded changes in criminal procedure, such as improving eyewitness identification practices, requiring electronic recording of custodial interrogations in felony cases, and better utilizing DNA technology. These reforms were signed into law in December 2005.

But the group didn’t look at what happens to exonerees once they’re released, Findley says, deciding instead that the primary goal would be to lower the incidence of wrongful convictions.

Wisconsin is one of 25 states, plus the District of Columbia and the federal government, that offers statutory compensation to exonerees.

Wisconsin Stats. Sec. 775.05, Compensation to Innocent Convicts, allows exonerees to petition the Wisconsin Claims Board, which must find that the evidence is clear and convincing that the petitioner was innocent, “and that he or she did not by his or her act or failure to act contribute to bring about the conviction and imprisonment for which he or she seeks compensation.” The board may then award a sum not to exceed $25,000, and at a rate of compensation not greater than $5,000 per year, for the imprisonment. It may also award fees, costs and disbursements.

The law dates back to 1979, and its defects are significant enough to have prevented many exonerees from pursuing relief under it, says Findley. The problems, per the WIP, are three-fold.

First, the amount of compensation is inadequate. Findley says it’s among the lowest in the country of the jurisdictions that offer post-exoneration relief.

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 Together
Life After Exoneration

Truth in Justice