by Ed Lyon
A state-sponsored formal religion in the U.S. is forbidden by the nation’s Constitution. Regardless, one part of the country’s ethos closely approaches a level of worship. That part is freedom. Enshrined in the Pledge of Allegiance as “the land of the free,” the U.S. nonetheless incarcerates more of its citizens per capita than any other nation on the planet—both guilty, and in far too many cases, factually innocent as well.
Innocent convictees caught up in the criminal justice system who are fortunate enough to later be declared innocent of their crime or removed from all legal encumbrances associated with their conviction because, for whatever reason(s), evidence of their innocence was not produced at trial and required later reconsideration, are called ‘exonerees.’
Attention to the plight of innocent convictees in the U.S. began to gain real traction in 1932 with the publication of Edwin Borchard’s book Convicting the Innocent. The main causes of wrongful convictions were pinpointed as “eyewitness misidentification, witness perjury, false confessions, police and prosecutorial misconduct, inadequate defense counsel, etc.” Study after study for the next 85 years consistently identify these as the principal factors for wrongful convictions. Beginning in the 1990s, DNA emerged as a major factor in exonerations.
Borchard’s book was followed by many other authors of note, one being Perry Mason’s Erle Stanley Gardner. They chronicled hundreds of horror stories about innocent convictees who spent decades in prison, some dying, some executed, and far too few becoming exonerees. This is all in spite of a criminal justice system that proclaims to ensure the fair administration of justice by affording criminal defendants with more constitutionally guaranteed rights and protections to prevent the innocent from being wrongfully convicted than any other legal system in the world ... supposedly. Despite the scholarly attention to this problem, most prosecutors, judges, and other criminal justice professionals remained firmly rooted in denial and treat wrongful convictions as rare, isolated occurrences when, and if, they were acknowledged at all.
Two categories of exonerations are group and individual.
The National Registry of Exonerations (“NRE”) does not track group exonerations (“GE”) as closely as individual exonerations (“IE”) because there is a general lack of specific data concerning each individual exoneree in a GE. The general catalyst leading to a GE is a corrupt police officer or police conspiracy. In its 2016 report, the NRE had records of 15 GEs comprised of 1,840 exonerees, as opposed to 1,900 IEs.
In some GE cases, a few of the exonerees cleared were actually guilty. Their involvement in the same type of criminal activity, at the same time as the exonerees, was all it took for them to reap the same benefit. For example, it was discovered in 1999 and 2000 that police officers within the Los Angeles Police Department’s Rampart Division had been planting drugs and guns on many people, even shooting them, then planting firearms on some of their victims. Of the 156 reversals in this GE, 38 met the NRE’s criteria as actual exonerations, 27 had “evidence of criminal culpability” with 22 being “too unclear to call.” So a little more than half of the Rampart GEs were totally innocent.
Although gross records of group exonerations are kept by the NRE, they are not heavily researched because of the lack of specific data on each exoneree as pointed out by the above example. Two exceptions to this practice are GEs that occurred in Tulia, Texas, and Houston, Texas.
A GE in Tulia occurred in 2003 for 39 convictees. Renegade sheriff’s deputy Tom Coleman, who had been indicted for theft, was nonetheless hired as an undercover narcotics officer by the Texas Department of Public Safety (“DPS”). Coleman lied and planted drugs on 39 suspects from 1999 to 2000. This earned Coleman the honor of being named 1999 Outstanding Lawman of the Year by the DPS and later “the most devious ... law enforcement witness this court has ever witnessed ... ” by the presiding judge who reviewed his perjured testimony in those 39 cases. In 2005, Coleman was fittingly given a new title after his perjury conviction—prisoner. Of the 39 GEs in Tulia, 37 met the NRE’s criteria as actual exonerations.
As a result of the GE in Houston, hundreds of drug cases were reversed because of the Harris County Crime Lab’s policy of testing suspected controlled substances even after convictions are obtained. This revealed many cases where cheap, inaccurate field tests rendered false positive readings on suspected controlled substances. In these two GEs, because detailed arrest and booking data were kept, personal data on each individual is available.
IEs are closely tracked because of the large amounts of statistical data compiled on the exonerees on a case-by-case basis during the exoneration process. It is from these empirical data sets that patterns emerge that are useful in pinpointing other cases.
As of 2016, the Albany Law Review published, by percentage, the parties who played any significant role in obtaining IEs: innocence projects, 34 percent; exonerees, 30 percent; subsequent defense attorneys, 21 percent; actual perpetrator, 12 percent; other individual or group, 11 percent; exoneree’s family, 10 percent; police, 9 percent; subsequent prosecutor, 7 percent; federal law enforcement, journalist, 4 percent; state administrative office, original defense attorney, 3 percent; victim, witness, convicting prosecutor, law school professor, 2 percent; and, exoneree’s friend, 1 percent.
The Exonerees — Demographics
U.S. census statistics show 77 percent of the population is white with 13 percent black. White people make up 59 percent of the nation’s prisoners; black people comprise 38 percent. Exonerations of white prisoners account for 39 percent of the total, while exonerations of black prisoners account for 47 percent. The raw numbers indicate racial bias, which is confirmed when individual cases are examined.
In 1980, a Texas Ranger told two school janitors, one white and one black, who found the body of a rape and murder victim at the school what to expect: “One of you is going to hang for this.” The ranger then turned to Clarence Brandley, the black janitor, and said: “Since you’re the nigger, you’re elected.” Brandley was, in fact, found guilty and sentenced to die in 1991 but was exonerated in 1990.
In 1984, black half-brothers Henry Lee McCollum, 19, and Leon Brown, 15, were convicted of the rape and murder of an 11-year-old girl. Both teens were intellectually challenged and confessed under police coercion. There was no physical evidence linking them to the crime. They were exonerated in 2014 by the North Carolina Innocence Inquiry Commission and pardoned by the governor in 2015. The Commission found DNA from a known serial rapist and murderer on a cigarette butt at the murder scene and fingerprints on beer cans, along with proven false trial testimony from a witness. Nevertheless, the convicting prosecutor was quoted by The New York Times as saying: “No question about it, absolutely they are guilty.”
In 1987, Alabama police framed Walter McMillian for murdering a white woman. He had several alibi witnesses, all black, who vouched for his presence at a fish fry. McMillian had a white girlfriend. He was convicted and sentenced to die in 1988 but was exonerated in 1993.
Nor is racial prejudice by police endemic in just the South. In 1991, a black college student, Arthur Colbert, was arrested by Philadelphia, Pennsylvania, police. They questioned him for six hours, often calling him a “nigger,” took him to an abandoned house and beat him, then returned to the precinct and beat him again, threatened him with a loaded pistol, and then broke into his apartment and performed an illegal search. Finding no contraband in his home and unable to force him to confess to anything, police finally released Colbert with a threat to kill him if they saw him again. The investigation into this incident led to the first GE in Philadelphia.
Nearly half of all exonerees in the 28-year reporting period have been black people. The NRE points to several reasons for this: (1) the high murder rate in the black community, (2) risks of misidentification in cross-racial crimes, (3) race of victim disparities, (4) blacks are more often stopped, questioned, and searched by police than are whites, i.e., racial profiling, and (5) blacks are statistically more likely targets of police and prosecutorial misconduct.
In sum, regarding police and prosecutors’ motives for their disparate treatment of blacks, the NRE stated in wording similar to a familiar insurance commercial: “That’s what they [police and prosecutors] always do.” At a glance, this is seemingly a facetious statement, but it is in accord with cold, hard statistical data, tables, and incidents.
As of November 2018, general exoneree demographics, including all races, show that one in three were sentenced to 50 years in prison with 14 of those years elapsing before they were exonerated. Eighteen percent pleaded guilty in spite of their innocence, 19 percent were posthumously awarded, and 6 percent of exonerees came from death row. Total numbers of IEs are rapidly approaching 2,300. [PLN, November 2018, p.17]
University of Michigan law professor Samuel Gross is a co-founder and senior editor of the NRE. In 2014, he conducted a study showing a statistically supported estimate that 4.1 percent of all death row prisoners are innocent, yet only 1.8 percent of them have been exonerated. The statistical model considers the number of capital prisoners who would have become exonerees had their sentences not been commuted, they not been executed, and had not died in prison awaiting execution. For the remaining non-capital prison population, Gross states the 2,000 individual exonerees at that time in the NRE database are but a tiny fraction of prisoners who are actually innocent.
Attorneys and Their Exonerated Clients: A Tie That Binds?
New Haven, Connecticut, attorney Kenneth Rosenthal and the Connecticut Innocence Project represented Bobby Johnson, an innocent murder convictee. Together, they convinced a Superior Court judge of Johnson’s innocence, obtaining his exoneration. Rosenthal helped Johnson obtain a Social Security card, job, and housing. He even gave a car to Johnson.
Another New Haven attorney, Sean McElligott, helped prove Vernon Horn’s innocence in connection with a murder conviction after Horn had spent 17 years in prison. Like Rosenthal, McElligott helped Horn obtain a residence, furniture, and a cellphone and to open a bank account. “The idea that you can represent a great human being like Vernon, who has been so completely wronged, is in the category of why I went to law school,” stated McElligott.
Henry McCollum and his half-brother Leon Brown were convicted of the rape and murder of an 11-year-old girl in 1983 North Carolina. Attorney Ken Rose stood by McCollum throughout 30 long years until the brothers were released. Rose, through his nonprofit law center, provided over $14,000 for the brothers to live on while Rose worked to obtain pardons and exoneree compensation for them. The brothers have IQs in the 50s. While their sister squandered the $14,000, predators moved in and conned the brothers into signing contracts for the predators’ services and a new lawyer. Even after obtaining their state statutory exoneree compensation, the brothers soon fell on hard times until a federal judge intervened, voiding the contracts, appointing a guardian ad litem for McCollum, and placing Brown in a group home. Rose continued to stand by McCollum through the final federal hearing. After testifying on McCollum’s behalf, Rose went to the table where McCollum was seated, shook his hand, and left the courtroom. The tie that bound in this instance finally stretched too far, now probably broken forever.
Exonerees: In Their Own Words
It is difficult to imagine what it must feel like to be imprisoned for a crime you did not commit. Try imagining how release from such circumstances must feel. Here’s how some exonerees explain it:
• Los Angeles, Californian Frank O’Connell stated: “This brings a sense of closure. It’s been a long road. It’ll be a new beginning for me, and I can’t really start my life over. I can’t make up for all the time that was stolen from me, but I can take positive action with what’s left. I’m a little disappointed I never got an apology, and I realize it may never happen, but I don’t carry it with me.”
• Riverside, Californian Horace Roberts simply stated: “I could not believe it was me walking out of prison.”
• Connecticut exoneree Mark Schand stated: “Believe me, the day they released me, I couldn’t find it — the anger. It wasn’t there. I was just happy I was out. And I figure, I just focus on that day forth.”
• Illinois exonerees Kristine Bunch and Juan Rivera, respectively, stated: “The moment you get out is incredible. Then the cameras leave and you realize you don’t even have a toothbrush.” … “No one can walk in our shoes or understand but us. We don’t know what normal is … [a]fter having served so much time in prison.”
• Indiana exoneree Keith Cooper: “Horrible. It’s like a nightmare. To this day I still have bad dreams about what happened and how they got me.”
• Kansas exoneree Lamonte McIntyre: “I can [now] live a normal life, like everyone else,” after receiving his state statutory exoneree compensation award.
• Baltimore, Maryland, exoneree James Owens: I’d rather have the time [20 years in prison] back than the [$9 million settlement] money.”
• Henry McCollum, after realizing predators had stripped him of his entire $750,000 state statutory exoneration compensation award, and he owed on loans of $130,000 and $65,000 at 19 percent and 38 percent interest rates: “I feel like I shouldn’t be out here.”
A member of your family is murdered. A person is tried and convicted, then imprisoned for the crime. Your family member is still gone, but you feel safe. There is closure of a sort. Years later, the convictee is exonerated and released. You feel: “Stunned,” stated Andrea Harrison after a chance meeting in a convenience store with exoneree Larry Peterson, who was wrongfully convicted of raping and murdering her mother over 20 years before. “I walked out of that store so fast,” she stated. “I still don’t have my mom, and now I don’t even have the satisfaction in knowing that whoever did kill her is [locked] away and they can’t hurt anybody else, they can’t hurt me.”
“It’s horrific enough to lose a family member, to add to that injury, finding out decades later that the wrong person has been convicted and the true assailant is left unapprehended,” stated Peterson’s attorney, Vanessa Potkin.
Retired New York City Police Department Sergeant Joe Giacalone points out: “Exoneration cases become, unfortunately, cold cases times two in many respects, because there are no other suspects.” As a former commander of the Bronx Cold Case Squad, he explained that older cases are more challenging — records are lost and witnesses die. “In many cases, the original investigators had ‘tunnel vision,’ focusing too early on a person or group and neglecting to pursue other leads. Wrongful conviction cases that involve DNA or other forensic evidence stand the best chance of seeing the crime solved. But the evidence that gets someone released from prison doesn’t always lead to another conviction.”
The Brooklyn Conviction Integrity Unit secured exoneration for Antonio Yarbough in 2014. He had spent almost 22 years in prison for the murders of his mother, sister, and a family friend. Unknown to Yarbough, his mother was a heroin addict. All of the victims had been bound, stabbed, and garroted.
DNA under his mother’s fingernails matched that of another rape that occurred after the son was imprisoned. That DNA remains unidentified. “I want him to get locked up, I want him to go to trial,” said Yarbough. “I wasn’t accused of killing somebody else,” he added. “I was accused of killing the most important people in my life.”
Flip sides of the same coin whether exoneree or victim’s survivor — either side comes up to reveal heart-wrenching pain and agony.
Exonerees and Recidivism
The proverbial axe that hangs over the neck of all former prisoners is a return trip to prison. Exonerees are no different in that aspect of post-release life than any other releasee. This is reflected in a 2014 study by the Northwestern University School of Law.
At that time, there were 1,900 individual exonerees in the U.S. The study was confined to 118 cases in four states. Texas with 46 IEs, New York with 24 IEs, Illinois with 31 IEs, and Florida with 17 IEs all had the most complete data sets from which to work. The remaining three in the top seven exoneration states were California, Louisiana, and Massachusetts.
The study’s population sample size (n) consisted of 67 blacks (56.8 percent), 34 whites (28.8 percent), and 14 Hispanics (11.9 percent). The average amount of prison time served was 11 years, with the times elapsing from release to Post Exoneration Offense Recidivating (“PEOR”) being 35.1 months. The commonly used benchmark in recidivism studies is 36 months. Ages of the exonerees ranged from the youngest at 19 to the oldest at 62, with the average being 39.
IE offenses were expunged for 79 of the population, and, of these, 25 (31.6 percent) fell into Post Exoneration Offense Recidivating. Of the 38 IE offenses that were not expunged, 19 (50 percent) were PEOR. Compensation was provided to 71 of the IEs (61.2 percent) while 45 (38.8 percent) received no compensation. No compensation data existed for two of the IEs in the study, so the population (n) of the group is 116.
IEs compensated at the threshold level of $500,000 or more PEOR’d at significantly lower levels than those compensated at below the threshold or not at all. IEs in this group with no prior criminal histories offended at the same percentage rate as first offenders to the general prison population.
Surprisingly, IEs who were compensated at below the threshold level PEOR’d at a higher rate than IEs who were not compensated at all.
A prior offense history was found to be a risk indicator of higher probable PEOR propensity in all categories of compensation.
Overall, PEOR rates for the study states are: Florida at 58.8 percent, Illinois at 38.7 percent, Texas at 45.7 percent, and New York at 8.3 percent. Recidivism rates for those states’ total releases are: Florida at 33 percent, Illinois at 43.7 percent, Texas at 31.4 percent, and New York at 42 percent.
Texas and New York’s prisons boast the nation’s most advanced education systems in prison with recidivism rates of 10 percent for prisoners earning associate degrees while incarcerated, 5.6 percent for Texas, and 5.7 percent for New York prisoners earning bachelor’s degrees while incarcerated, and a zero percent recidivism rate for prisoners earning master’s degrees while incarcerated. PEOR rates are significantly higher than all other recidivism rates for prison releasees.
Expungement of the exoneration offense reduced the likelihood of PEOR by 16.725 percent for exonerees with no prior criminal history. For exonerees with a prior criminal history, expungement of the exoneration offense was shown to reduce the likelihood of PEOR by only .66 percent.
The more generous the exoneration compensation package is, coupled with expungement of the exoneration offense, the lower the likelihood of recidivism for exonerees is. However, no group came anywhere near the tiny recidivism rates for prisoners who successfully earned college and university degrees during their incarceration, whether exoneree or parolee.
Oklahoma death row exoneree Yancy L. Douglas recidivated, drawing a 10-year prison sentence for assaulting a police officer during a traffic stop. His $1 million conviction lawsuit settlement awaits him upon his release. [PLN, October 2018, p.38]
The overwhelming majority of states provide assistance for parolees. This is not usually the case for exonerees. Exonerees wind up in a double daymare: the first is false imprisonment — sometimes for decades, the second is the shock of being released and having nothing with which to rebuild their shattered lives and stolen years.
There are three methods of obtaining compensation for those years stolen from an exoneree by the government.
The least successful method is for the exoneree to petition the government’s legislature for a private bill of compensation. Florida exoneree Wilton Dedge began efforts to have a private bill passed for him in 2004. Initially refusing, the legislature finally passed a bill for Dedge, probably as a result of the public hue and cry over the injustice of Florida imprisoning him for 22 years for a rape and burglary he did not commit. In 2008, the legislature enacted a common compensation bill for exonerees.
A second alternative for exoneree compensation is to sue. Possible outcomes include a return of nothing, a settlement of indeterminate range according to a jury’s whim, or, in some cases, a large sum. Exoneree Juan Rivera won the largest individual jury award for wrongful incarceration to date of $20 million.
The third—and rapidly becoming the most viable alternative for exoneree compensation—are statutes enacted by the federal government, District of Columbia, and the individual states.
In early 2018, Massachusetts and Kansas became the 32nd and 33rd states to enact laws to compensate exonerees. The states with no exoneree compensation statutes are Alaska, Arizona, Arkansas, Delaware, Georgia, Idaho, Kentucky, Nevada, New Mexico, North Dakota, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, and Wyoming. Indiana became the 34th state to adopt an exoneree compensation law, signed into law May 1, 2019.
States with the lowest rates of exoneree compensation are Illinois, Iowa, Louisiana, Missouri, and New Hampshire.
Compensation by State
States with the highest rates of exoneree compensation are Texas, awarding $80,000 per each year of imprisonment, plus $25,000 per year spent as a registered sex offender or on parole; Colorado, awarding $70,000 per each year of imprisonment, adding $50,000 per year if the exoneree was on death row, with $25,000 per year for each year an exoneree spent on parole if exoneration occurred after release; Kansas, awarding $65,000 per each year of imprisonment, adding $25,000 per each year spent on parole if exoneration occurred after release; and, Vermont, awarding from $30,000 to $60,000 per each year of imprisonment that may include lost wages, costs, and attorney fees. Exoneree compensation amounts averaged $50,000 across that offered by these 33 states.
The District of Columbia’s compensation package far outstrips any state, awarding $200,000 per each year spent in prison, adding $40,000 per each year spent on parole if exoneration occurred after release from prison.
“At the other end of the spectrum, New Hampshire caps total compensation at $20,000, no matter how long a person was incarcerated,” npr.org reports. “Montana offers educational aid but no money.”
The federal system is more in line with the state system average, awarding $50,000 per each year of imprisonment, with $100,000 per each year spent on death row.
Money is not everything, as the old saying goes. Most innocence projects rightly insist that states should offer, in addition to monetary awards, reintegration services and assistance similar to that provided to Texas exonerees. That state pays for counseling, child support arrearages, tuition, and all associated fees at any state college or university for 120 credit hours, development of a thorough and comprehensive plan for the exoneree’s successful reintegration into society to include life and job skills training, documentation acquisition, and group health-benefits coverage through the prison system’s plan—the same as if the exoneree were an employee of the Texas Department of Criminal Justice. That agency is the state’s largest and as such, sports the best health-care insurance package and rates of any state agency. Few other states come close to matching this exoneree compensation package, and none exceeds it.
Michigan caps monetary exoneree compensation at a maximum of $50,000 per each year in prison. The Michigan Court of Claims (“MCC”) decides the award amounts. Michiganian Edward George Carter was convicted of rape, despite non-DNA evidence that was collected at the crime scene exculpating him from the offense. He spent 35 years in prison prior to his exoneration and was awarded $1,761,506.85 by the MCC, $14,770 short of the maximum yearly amount set by statute. [PLN, August 2018, p.45]
Austin, Texas, couple Dan and Fran Keller spent 21 years in prison, convicted in 1992 of sexually assaulting a three-year-old girl at their day-care center. This was one of the last cases of “Satanic Panic” involving small children that swept the U.S. in the 1980s and early ’90s. Their convictions were vacated in 2015, and they were formally exonerated in 2017. They received initial exoneree compensation payments of $3.4 million each with $80,000 in lifetime annuities and the same excellent health-care coverage enjoyed by state prison employees under the Texas wrongful conviction statute. [PLN, November 2018, pp.26-27]
Until 2015, exoneree compensation awards were subject to federal income tax. The Wrongful Convictions Tax Relief Act of that year ended that practice. The bill’s provisions were made retroactive, making prior exoneree compensation awards that had already been taxed refundable to the exoneree. The retroactivity clause set a time limit for claiming any refunds due to one year, expiring at the end of 2016.
Other exonerees do quite well in litigating settlements for wrongful convictions.
The largest court settlement award went to Illinois exoneree Rivera (see above). He was convicted three times for a 1992 rape and murder of an 11-year-old girl — despite the inconvenient fact that DNA evidence existed excluding Rivera from the offense. Taking advantage of his low IQ, police coerced Rivera into signing a confession after a three-day-long marathon questioning session. The Illinois Appeal Court reversed his third conviction in 2011, and prosecutors dismissed the charges against him a year later. Erroneously informed that Illinois had no compensation statute, Rivera sued and won a $20 million settlement. From his $11.4 million share after legal and attorney fees, he donated $300,000 to start a barber college for low-income citizens. [CLN, November 2018, p.17]
California caps monetary exoneree compensation at $140 per each day of imprisonment. One exoneree, Frank O’Connell, spent 27 years in prison on a murder conviction. Prosecutors coerced a half-blind neighbor of the victim to testify that the victim made a deathbed statement of being shot by a man driving a car like O’Connell’s.
The witness later recanted. Centurion Ministries spearheaded the drive to prove O’Connell’s innocence. In November 2017, O’Connell finalized a lawsuit for $15 million, including attorney and legal fees. [PLN, August 2018, p.50]
Nebraska, meanwhile, caps monetary exoneree compensation at $500,000 total. Exonerees James Dean, Kathleen Gonzalez, Deborah Sheldon, Jo Ann Taylor, Joseph White and Thomas Winslow were convicted of a 1985 rape and murder case and chose to bypass the state’s statutory compensation because of the extremely egregious circumstances of their convictions. They sued Gage County, its sheriff, and some deputies in federal court. A jury agreed with the exonerees, awarding them a collective $28.1 million in damages, which the U.S. Court of Appeals for the Eighth Circuit affirmed. [CLN, October 2018, p.23]
Oklahoma caps monetary exoneree compensation at $175,000 total. Death row exonerees Yancy L. Douglas and Paris Lapriest Powell had their convictions reversed by the U.S. Court of Appeals for the Tenth Circuit based upon especially outrageous prosecutorial misconduct. The two were awarded $1 million and $2.15 million settlements in August and September 2017 resulting from their federal lawsuits. [PLN, October 2018, p.38]
Maryland has no monetary exoneree compensation cap, but it does allow awards for actual damages. Baltimore resident James Owens was wrongfully involved as a murder suspect by a friend trying to collect a $1,000 information award. Both men were convicted and sentenced to life after police and prosecutors had their way with them. In 2006, a DNA test excluded Owens, resulting in his exoneration. Baltimore attorney Charles Corlett took over Owens’ faltering legal battle, winning him a $9 million settlement from the city. [CLN, November 2018, p.29]
North Carolina caps monetary exoneree compensation at $750,000 total, pro-rated at $50,000 per each year in prison. McCollum and Brown (mentioned above) spent 30 years in prison before they were released and later exonerated. They each collected the maximum statutory award of $750,000 and later settled wrongful conviction lawsuits against three other entities for undisclosed amounts pursuant to a court ordered seal. [PLN, August 2017, p.58: February 2018, p.54: September 2018, pp.40-41]
to the Exoneration
Some exonerees step out of their imprisonment thinking that their long, grueling ordeals are finally over only to be shocked at the hell on Earth awaiting them as their lives seemingly go from bad to worse.
In the 1990s, Mexican immigrants Gabriel Solache and Arturo Reyes came to the U.S. seeking the American dream in Chicago, Illinois. Neither man spoke English, but both were willing to begin their new lives as laborers. In 2000, the men were convicted of a 1988 murder they did not commit based upon their confessions to police as a result of beatings. They were both eventually exonerated of the murder and released — to the not-so-tender mercies of the U.S. Immigration and Customs Enforcement agency (“ICE”). ICE is seeking to deport Solache and Reyes back to Mexico. [PLN, September 2018, pp.44-45]
In 1981, Haiti was in a state of utter chaos caused by economic turmoil and political unrest. Haitian Jules Letemps was granted a “humanitarian parole” to the U.S. because of that country’s problems. In 1986, Letemps was arrested for trying to sell a miniscule amount of cocaine in order to have money to buy food for himself and his girlfriend. He was sentenced to the five months in jail it took to get him to court. ICE paid no attention to this minor offense then. In 1989, he was wrongfully convicted of rape based on the victim’s misidentification. DNA excluding Letemps from the rape existed the entire time, but an ineffective, court-appointed lawyer could not read the results. Centurion Ministries began working on Letemps’ behalf in 2010. They managed to have his conviction reversed in July 2016 in a federal district court, and prosecutors dropped all charges against him in 2016. Again, ICE stepped in to save the day for the good-ole U.S. of A., protecting the homeland from Letemps, who is now labeled as an “arriving alien” in immigration court proceedings due to his parole status when he arrived in the U.S. “Based on Mr. Letemps’ criminal past, ICE determined that his detention is warranted,” ICE spokesperson Spicer reported in an email statement.
The hospitality not shown to the exonerated aliens among us positively pales in comparison to the mistreatments and abuses visited upon some native-born exonerees by friends, families, and especially strangers.
Henry Lee McCollum was reading at second-grade level when he dropped out of high school. His half-brother Leon Brown could just barely read and write when he dropped out of school. Their IQs were in the 50s. The two New Jersey natives were visiting relatives in North Carolina when 11-year-old Sabrina Buie was raped, murdered, and abandoned in a soybean field. With such limited mental faculties, it wasn’t difficult for police and prosecutors to coerce confessions from them to the rape and murder, then obtain death penalty convictions. After retrials ordered by the U.S. Supreme Court, McCollum returned to death row while Brown drew a life sentence and entered prison as the lowest of the low, a child rapist and murderer.
Ken Rose, McCollum’s original trial attorney, hung on for the entire three decades, never abandoning his client. In 2014, the North Carolina Innocence Inquiry Commission announced a DNA finding from the crime scene that excluded the brothers, with their innocence being declared by a judge the following September. The men went to live with Leon’s full sister, Geraldine, who had visited Leon in prison exactly once and Henry exactly never. Attorney Rose, through his nonprofit law center, fronted the men $14,000 to get them on their feet and allow them to live while he worked to obtain pardons, so he could then begin work on obtaining statutory exoneree compensation awards for them. Geraldine promptly squandered the $14,000, and social workers began to take the men shopping for clothing and food rather than trust their sister with any money.
After several months elapsed with no state compensation, a cousin contacted Kimberly Weekes, a self-styled advocate from Atlanta, Georgia. After meeting Geraldine, Weekes brought in a “business partner” from New York, Deborah Pointer, and together they drew up a contract to “help” the exonerees in return for 10 percent of any loans to the men, 5 percent of any state compensations, and 1 percent of any lawsuit settlements. The predatory partnership of Weekes & Pointer soon found a like-minded lawyer from Orlando, Florida, to edge out the hard-working, well-meaning legal team already laboring on the brothers’ behalf.
Lawyer Patrick Megaro cut himself in for a full third of all awards the exonerees would receive, even if and after Megaro may be fired. This percentage exceeded the limits imposed on attorney fees by the state bar.
Megaro then approved a $100,000 loan for each man at a mere 41.6 percent interest rate and a $5,000 fee. Of course, agents Weekes and Pointer each realized their 20 percent, or $20,000 apiece. During this period, Weekes made as many trips to North Carolina on the exonerees’ behalf as Geraldine made to prison to visit her brother — exactly once.
By September 2015, the men were pardoned as Leon continued a slide into the dark abyss of mental illness brought on by years of prison abuse, beatings, and rapes, finding himself in a mental hospital for the seventh time since his release from prison. The men would later realize less than half of their $750,000 state exoneree compensation awards, thanks to the machinations of lawyer Megaro. “I like these guys,” Megaro said in 2017. Megaro gave the men no financial advice and did not set up trusts for their future needs. He did arrange for more high interest, predatory loans for them. Geraldine continued to squander Leon’s money, buying herself a Lexus, a BMW, a Mustang sports car, and a van, along with jewelry for herself with toys and diapers for her children, despite legal prohibitions to keep guardians from spending their charges’ funds for personal use.
By 2017, Megaro announced a negotiated settlement with the Red Springs Police Department wherein each man would be paid $500,000. By that time, however, the honorable U.S. District Judge Terrance Boyle had taken charge, appointing new guardians for each exoneree and demanding accountings from all parties while putting the Red Springs settlement on hold.
Megaro found himself encountering a federal judge’s wrath when he continually refused to answer Judge Boyles’ questions about Megaro’s financial dealings with the exonerees. Judge Boyles divested Geraldine of her guardianship over Leon and ordered her to be jailed. “Why you would take advantage of a poor soul like that, I don’t know,” stated Judge Boyles. “I’m sorry you feel that way,” Geraldine responded. Adding that she should never have been appointed Leon’s guardian to begin with because “I’m incompetent, too. I ain’t gonna lie.”
Judge Boyles ultimately approved the Red Springs settlement, severed lawyer Megaro from anything else concerning the exonerees with help from attorney Rose’s testimony, and appointed new guardians for both men. Settlements from the North Carolina Bureau of Investigation and Robeson County Sheriff were eventually reached, but the amounts were sealed by court order. [PLN, August 2017, p.581 February 2018, p.54: September 2018, pp.40-41]
For some exonerees, the punishment received incidental to their wrongful convictions and incarcerations has turned out to be as bad, if not worse in some cases, than the original state-originated torts themselves.
Concerns, Noteworthy Successes
Fresh out of prison, exonerees must have food, shelter, clothing, and medical care, just like all people. Not all exonerees have longtime attorneys or innocence project personnel to assist. Many states do not have the programs or infrastructure available to help exonerees assimilate back into society that are available to parolees.
Many states do not automatically expunge an exoneree’s records in order to ease their ability to land a job, rent an apartment, or gain access to services like food stamp programs. Where expungement does exist, the process may take years, even decades in some cases, to complete. One problem is a criminal justice system that reflects an implicit message that exonerees may not be guilty—but they are not innocent, either.
One employment avenue might be “transition jobs.” While often menial, these jobs nonetheless allow new prison releasees — exonerees, especially — to prove they are dependable and reliable, build an employment history, learn diversity in the workplace, and regain feelings of self-respect, pride, and accomplishment that being imprisoned causes a person to lose.
Entry-level food-service positions like dishwasher can lead to food preparation jobs, from fry and short-order cook to eventually chef, as a person’s experience in that field broadens.
Warehouse laborer jobs lead to forklift operator, transportation specialists, dispatchers, and managerial positions.
House of Renewed Hope
Mark Schand was wrongfully convicted of murder in 1987 in Springfield, Massachusetts. The state did absolutely nothing to assist his transition into society despite exonerating and declaring him innocent of the murder after his 27 years in prison.
Door after door slammed shut to him as he applied for job after job. Schand had a transition job nights for United Parcel Service, loading those dark brown vans with boxes. In 2018, however, he rebooted the career that was stolen from him at age 19. He opened a business, Sweetwater smoothie cafe in New Britain, Conn.
Texas exonerees Christopher Scott, Johnnie Lindsey, and Steven Phillips took the bull by the horns after their release from prison and exoneration. Having been there, done that, and learned the pitfalls, back alleyways of the criminal justice streets, and dirty tricks of police and prosecutors, plus the many mistakes made by inept defense lawyers, the trio started the House of Renewed Hope. While Lindsey died in 2018, the work of the House of Renewed Hope, a nonprofit detective agency, continues. Its mission is to pursue and investigate claims of actual innocence. The House also advocates for criminal justice system changes on the legislative level.
It’s a grand entrepreneurial start, one that will hopefully never finish for as long as an innocent convictee is dying a little bit each day in a 9-by-6-foot barred closet.
Sources: Albany Law Review, November 2015; ccresourcecenter.org, scholarlycommons.law.northwestern.edu, thecrimereport.org, trib.com, https://whyy.org, californiainnocenceproject.org, careerwise.minnstate.edu, earlcarl.org, innocence project.org, ktuu.com, law.com, law.umich.edu, nytimes.org, prisoneducation.org, seattletimes.com, texascoalitionforcriminaljustice.com, theatlantic.com, theindychannel.org, themarshallproject.org, wnpr.org, wsj.org, npr.org, United States Department of Justice Bureau of Justice Statistics
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