February 22, 2008
CALIFORNIA COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE

REPORT AND RECOMMENDATIONS ON REMEDIES.
Introduction.
The California Commission on the Fair Administration of Justice was
established by California State Senate Resolution No. 44 to carry out the
following charges:
(1) To study and review the administration of criminal justice in
California to determine the extent to which that process has failed in
the past, resulting in wrongful executions or the wrongful conviction
of innocent persons;
(2) To examine ways of providing safeguards and making
improvements in the way the criminal justice system functions;
(3) To make any recommendations and proposals designed to further
ensure that the application and administration of criminal justice in
California is just, fair, and accurate.
This Report will address some of the obstacles faced by persons who have
established their innocence after conviction of a crime, in gaining access to post
conviction relief, achieving reintegration into society, and gaining compensation
for their wrongful incarceration. It will also address the access and reintegration

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problems encountered by those released after reversal or vacation of their
convictions without a finding of innocence. Access to post conviction relief and
reintegration into society should be a goal for all those whose convictions are
subject to legal challenge. They often have distinct problems re-entering society,
and have difficulty achieving legal redress due to a variety of substantive and
technical obstacles in the law. Compensation, however, should be limited to those
who have been found innocent of the crime or crimes for which they were
convicted and imprisoned, not because of procedural errors in their trials. They
have been deprived of their liberty based upon a failure in the criminal justice
system. It should be the policy of the State of California to redress the injury
inflicted upon the innocent as quickly as possible, to restore them to full
participation in the life of the community, and to provide all of the services needed
for the difficult transition from wrongful imprisonment to restoration of all the
rights and liberties to which they are otherwise entitled.
The Commission conducted a public hearing addressing these issues at Santa
Clara University on October 17, 2007. The Commission heard testimony from
innocent persons who were erroneously convicted and the lawyers who have
represented them that was remarkably consistent: they face many difficult
obstacles to full restoration of their rights and liberties, and the compensation they
receive for their losses is frequently inadequate. While organizations such as Life

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After Exoneration seek to assist, they rely upon volunteers and charitable
contributions. Last year, Life After Exoneration attempted to serve over 70
exonerees throughout the nation with a budget of $100,000 and a staff of two
social workers. Many of their needs are unmet. Such assistance should not be
dependent upon charitable contributions. It is an obligation of the State, which
bears responsibility for the wrongful deprivation of an innocent person’s liberty, to
provide assistance in the adequate restoration of that innocent life which was
disrupted.

Compensation for the Innocent.
California has a statutory scheme for compensating claimants who can
establish that the crime of which they were convicted was not committed or was
not committed by them, that they did not contribute to the bringing about of their
arrest or conviction, and that they sustained pecuniary injury. The statute was first
enacted in 1941, with a compensation limit of $5,000. In 1969, the maximum limit
was raised to $10,000. In 2000, the statute was amended to provide that if
compensation is awarded, it is limited to $100 per day of wrongful incarceration,
or a maximum of $36,500 per year of incarceration. The award must be
subsequently approved by the legislature. The comparable federal statutory
provisions for compensating innocent persons capped recovery at $5,000 until the

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2003 enactment of the Innocence Protection Act, which increased the limit to
$50,000 for each year of prison confinement, and $100,000 for each year on death
row. 28 U.S.C. §2513.
Since 1984, the California Victim Compensation & Government Claims
Board has approved 15 claims from persons who established their innocence of the
crimes of which they were convicted. 1 During the same period, the Board denied
25 claims, and dismissed another 19 because they were untimely, incomplete, or
the claimant had not been released from prison. California Penal Code Sections
4900-4906; Letter to Commission from Karen McGagin, Executive Officer,
California Victim Compensation & Government Claims Board. See
www.vcgcb.ca.gov.
California Penal Code §4901 currently requires that a claim for
compensation for wrongful imprisonment of an innocent person must be presented
within a period of six months after judgment of acquittal or discharge given, or
1

The following is a summary of approved claims during the past five years:
David Jones
John Stoll
Kenneth Marsh
Pete Rose
Kevin Baruxes
Quedellis Walker
David Quindt
Leonard McSherry
Frederick Daye

March 15, 2007
May 18, 2007
Jan. 19, 2006
Oct. 20, 2005
June 25, 2004
Sept. 19, 2003
Feb. 28, 2003
August 23, 2002
March 22, 2002

74,600
704,400
756,900
328,200
258,700
421,000
17,000
481,200
389,000

All of these claims were subsequently approved by the legislature with the exception of David Jones. His
claim was included in S.B. 242 (Torlakson)(2007) as an appropriations measure. The bill failed on the
Senate floor when an Urgency clause was defeated. It may be eligible for reconsideration in its second
year, however.

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after pardon granted, or after release from prison. The Commission recommends
that the time limit for presentation of such claims be extended to two years. The
difficult adjustment required after release from wrongful incarceration frequently
renders the current deadline unreasonable. These claims should not be precluded
by a delay of less than two years.
The Commission also recommends that a court granting judicial relief upon
a claim of innocence be required to notify the petitioner of the availability of
compensation pursuant to California Penal Code Section 4900, and the time limits
for the filing of such claims.
California Penal Code §4904 requires a claimant for victim compensation to
establish that the claimant did not, by any act or omission either intentionally or
negligently, contribute to the bringing about of his or her arrest or conviction. The
Commission is concerned lest this requirement be utilized to exclude innocent
persons who were victims of false confessions or improperly induced guilty pleas
from compensation for their wrongful convictions. The exception should not
include those who were victims of false confessions or improperly induced guilty
pleas. It should be limited to those who intentionally subverted the judicial
process.
The current limitation of compensation to innocent persons who were
wrongfully convicted to one hundred dollars per day of incarceration, or a

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maximum of $36,500 per year, should be increased. The Commission
recommends that the level of statutory compensation be increased, at least to the
level of comparable federal compensation ($50,000 per year maximum). There
should also be an adjustment to increase the award to reflect the annual rate of
inflation subsequent to enactment of this level of compensation.

Providing Post-Release Assistance.
It is currently the declared policy of California to provide educational,
vocational, family and personal counseling necessary to assist parolees in the
transition between imprisonment and discharge. California Penal Code §3074.
SB 618, enacted in 2005, added Section 1203.8 to the Penal Code, to authorize
Counties to develop a multiagency plan to prepare and enhance nonviolent felony
offenders’ successful reentry into the community. Ironically, even the limited
resources made available to convicted felons who have served their sentences and
are released from prison are not available to those whose convictions have been set
aside. Parolees are released to the community in which they were arrested or
convicted; services such as counseling and assistance in locating housing or jobs
are limited to those who remain under parole supervision. But those who are being
released because their conviction is set aside, including those who have been found
innocent, receive none of these services. Those who have been released back into

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the community after successfully challenging their convictions, whether innocent
or not, face the same obstacles encountered by parolees, and more. Many are
afflicted with post-traumatic stress disorder, or other psychological damage
resulting from their wrongful incarceration over a long period of time. Of the
States with compensation laws, only three – Massachusetts, Louisiana and
Vermont – provide for the costs of medical and psychological care.
The New York Times recently gathered information on 137 of the 206 imprisoned
individuals who have been found innocent by DNA testing from 1989 through
2007. The reporters also researched the compensation claims of all 206. They
found that at least 79 of these persons (40%) received no compensation at all.
More than half of those who did receive compensation waited two years or longer
after exoneration for the first payment. Few received any government services after
their release. They typically left prison with less help – prerelease counseling, job
training, substance-abuse treatment, housing assistance and other services – than
some states offer to paroled prisoners. Most found that authorities were slow to
wipe the convictions from their records, if they did so at all. Even those who were
well educated and fully employed at the time of their wrongful conviction had
difficulty finding work after their release. Roberts & Stanton, A Long Road Back
After Exoneration, and Justice is Slow to Make Amends, New York Times, Nov.

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25, 2007; Santos & Roberts, Putting a Price on a Wrongful Conviction, New York
Times, Dec. 2, 2007.
The Commission recommends that services to assist with reintegration into
society be available to all those released from prison after their judgment of
conviction has been reversed, vacated or set aside. This would include assistance
in locating housing, a cash allowance, clothing, and employment counseling.

Claims Barred by Statute of Limitations.
Many of the exonerated have a valid cause of action for the wrongful acts or
omissions of the lawyers who previously represented them which resulted in their
erroneous conviction. If they delay filing a cause of action until they achieve
exoneration, their claim will in most cases be barred by the Statute of Limitations.
Yet proving their exoneration is an element they must establish to recover
damages. It is a classic “Catch-22” created by California Civil Procedure Code
§340.6(a), which provides:
An action against an attorney for a wrongful act or omission, other than for
actual fraud, arising in the performance of professional services shall be
commenced within one year after the plaintiff discovers, or through the use
of reasonable diligence should have discovered, the facts constituting the

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wrongful act or omission, or four years from the date of the wrongful act or
omission, whichever occurs first.
California Civil Procedure Code §352.1(a) provides:
If a person entitled to bring an action . . . is, at the time the cause of action
accrued, imprisoned on a criminal charge, or in execution under the sentence
of a criminal court for a term less than for life, the time of that disability is
not a part of the time limited for the commencement of the action, not to
exceed two years.
Normally, the facts constituting the wrongful act or omission (such as a failure to
investigate or call available witnesses) will be known to the defendant at the time
of his conviction. Even with the two year tolling, his cause of action would have
to be filed within three years.
In Coscia v. McKenna & Cuneo, 25 Cal.4th 1194 (2001), the California
Supreme Court held that a person alleging he was convicted through the wrongful
acts or omissions of his lawyer must obtain post conviction relief in the form of a
final judicial disposition of the underlying case, such as acquittal after retrial,
reversal on appeal with directions to dismiss the charges, reversal followed by the
People’s refusal to continue the prosecution, or a grant of habeas corpus relief, as a
prerequisite to proving actual innocence in a malpractice action against his former
criminal defense counsel. This requires an erroneously convicted innocent person

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to file a malpractice claim within the period of the statute of limitations, even
though he will not be able to pursue the claim until he achieves exoneration,
perhaps many years later. It is unrealistic to expect a prisoner to file a lawsuit
against his attorney before his efforts for post-conviction relief have succeeded. In
many cases, post-conviction relief comes many years after conviction. If such a
lawsuit were filed, it would have to be held in abeyance anyway, until postconviction remedies have been exhausted.
The recent case of Rose v. Hudson, 153 Cal.App.4th 641 (2007) provides a
good example. Pete Rose was convicted of the kidnap and rape of a 13 year old
girl in November, 1995. His conviction was vacated in October, 2004 upon his
exoneration. 2 He filed a complaint against his defense attorney, alleging that the
attorney’s negligence contributed to his wrongful conviction. His complaint was
dismissed because it was not filed within the statute of limitations, even though the
Court conceded that he could not have recovered on his claim until his conviction
had been vacated. Thus, the only way one who maintains his innocence can obtain
relief on a claim of attorney malpractice is to file the claim prior to achieving
exoneration, and ask the court to stay the suit pending resolution of his postconviction remedies.

2

As noted in fn. 1, supra, Rose established his innocence and was awarded compensation by the California
Victim Compensation & Government Claims Board in 2005.

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The Commission recommends that the California Code of Civil Procedure
be amended to provide that a two year Statue of Limitations for professional
malpractice claims shall commence upon the granting of post conviction relief in
the form of a final judicial disposition of the underlying case.

Access to Post-Conviction Relief.
The Commission also examined some of the obstacles which innocent
persons may face in obtaining access to testing and a judicial hearing that could
lead to exoneration. California Penal Code Section 1405 permits a prisoner to
petition for performance of DNA analysis that might exonerate him, and upon the
filing of a proper motion, an attorney will be appointed to assist him.

Many

prisoners seek the assistance of the Innocence Projects at Santa Clara University
School of Law and California Western School of Law to evaluate their claims and
file the necessary petition to make an adequate showing. More than 173,000
inmates are incarcerated in California prisons. California Western Law School and
Santa Clara University have been working collaboratively over the past seven
years to assist indigent California inmates raising innocence claims. Santa Clara’s
Northern California Innocence Project (NCIP) represents inmates convicted in
Northern California courts and California Western’s California Innocence Project
(CIP) represents inmates convicted in Southern California courts. The Projects

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operate with significant assistance from law students and their sponsoring
educational institutions. Both projects are active founding members of the
Innocence Network, an association of innocence projects working nationally to
address problems of wrongful conviction.
In 2001, California mandated that all costs associated with
representing inmates pursuant to Penal Code section 1405 to investigate and,
if appropriate, file motions for DNA testing of biological evidence where
such testing could prove innocence, be borne by the State. In that same year,
California allocated $1.6 million dollars over two years to provide counsel to
assist inmates with innocence claims. For 2002 and 2003, the NCIP and CIP
received state funding. That funding was discontinued as a result of state
budget cuts in 2003.
If the innocence projects are forced to shut down or seriously cut back
the work they do, California will be faced with adding to the burden of state
offices which would be left to handle these cases without the particularized
experience representing innocence claims post-conviction, and the resource
of volunteer law students.
To date, the Innocence Projects have succeeded in helping to
exonerate 11 people, two based on DNA evidence and nine on other
grounds. Each exoneration has saved the state the cost of housing an

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innocent person and has returned the exonerees to their families and
communities. Moreover, as in the case of Kevin Green, whose exoneration
in Orange County led to the conviction of the real murderer and rapist, the
work of innocence projects also advances the interest of public safety.
With hundreds of law students assisting, and the support of Santa
Clara University and California Western School of Law, the Projects are
screening on average 3,200 claims each year. While most innocence claims
come from guilty prisoners, every claim must be reviewed and evaluated in
order to identify those prisoners who do have legitimate innocence claims.
Over the past seven years, the Projects have processed and reviewed
20,431 requests for assistance. Of those, 13,990 have been rejected and 288
are being actively investigated. There is a current backlog of 700 cases,
which cannot be thoroughly reviewed because of the limited resources of the
Projects. The remaining cases are in various stages of administrative review.
It is remarkable – a testament to the efficiency and effectiveness of the
Projects -- that the backlog is only 700 cases. However, that backlog is ever
increasing and will only worsen at the current level of Project funding.
Other states provide state funding for the work of projects similar to
the California Innocence Projects. The State of Connecticut, with a prison
population that is 8.5 times smaller than California’s, funds their Public

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Defender’s Office with more than $500,000 per year to pay for four full-time
Innocence Project positions. The new positions have no termination date
and are expected to continue.
The Commission recommends that State funding for the Northern California
Innocence Project and the California Innocence Project be restored.

Discovery of Information and Access to DNA Databases to Establish
Innocence Claims.
The Commission is continuing its assessment and analysis of problems
encountered by the Innocence Projects and defense counsel in gaining access to
information and evidence from District Attorney’s Offices regarding claims of
innocence which they are investigating; gaining access to DNA databases to seek
matches to DNA material that may assist in establishing a claim of innocence; and
gaining discovery to support pending habeas corpus claims on behalf of those
seeking exoneration on a claim of innocence. A separate report on these issues
may be issued by the Commission prior to its expiration on June 30, 2008.

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RECOMMENDATIONS
1. The California Commission on the Fair Administration of Justice
recommends that services to assist with reintegration into society be available
to all those released from custody. This would include assistance in locating
housing, a cash allowance, clothing, and employment counseling.

2. California Penal Code §4901 currently requires that a claim for
compensation for wrongful imprisonment of an innocent person must be
presented within a period of six months after judgment of acquittal or
discharge given, or after pardon granted, or after release from prison. The
California Commission on the Fair Administration of Justice recommends
that the time limit for presentation of such claims be extended to two years.
While exonerees may wish to file these claims as quickly as possible, their
claims should not be precluded by a delay of less than two years.

3. The California Commission on the Fair Administration of Justice
recommends that a court granting judicial relief upon a claim of innocence be
required to notify the petitioner of the availability of compensation pursuant
to California Penal Code Section 4900, and the time limits for the filing of
such claims.

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4. California Penal Code §4904 requires a claimant for victim compensation
to establish that the claimant did not, by any act or omission either
intentionally or negligently, contribute to the bringing about of his or her
arrest or conviction. This requirement should not be utilized to exclude
innocent persons who were victims of false confessions or improperly induced
guilty pleas from compensation for their wrongful convictions. The
Commission recommends that this requirement be limited to a showing that
the claimant did not intentionally subvert the judicial process.

5. California Penal Code §4904 currently limits compensation to innocent
persons who were wrongfully convicted to one hundred dollars per day of
incarceration, or a maximum of $36,500 per year. The California
Commission on the Fair Administration of Justice recommends that the level
of statutory compensation be substantially increased, at least to the level
available under the federal system of compensation. There should also be an
adjustment to increase the award to reflect the annual rate of inflation
subsequent to enactment of this level of compensation.

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6. Currently, innocent persons who are released from prison are required to
file a separate legal action for expungement of their conviction before they are
fully restored to all the rights of citizenship and relieved of the disabilities
imposed by a prior conviction. The California Commission on the Fair
Administration of Justice recommends the enactment of legislation to provide
for automatic expungement of the record of conviction whenever a final
judgment of conviction is set aside or vacated and the Court makes a finding
of the actual innocence of the defendant.

7. The California Commission on the Fair Administration of Justice
recommends that the California Code of Civil Procedure be amended to
provide that a two year Statue of Limitations for professional malpractice
claims shall commence upon the granting of post conviction relief in the form
of a final judicial disposition of the underlying case.

8. The California Commission on the Fair Administration of Justice
recommends that State funding for the Northern California Innocence Project
and the California Innocence Project be restored.

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Respectfully submitted,
California Commission on the Fair Administration of Justice:
John K. Van de Kamp, Chair
Jon Streeter, Vice Chair
Diane Bellas, Alameda County Public Defender
Harold O. Boscovich, Jr., Danville
Chief William Bratton, Los Angeles Police Department (Gerald Chaleff)
Jerry Brown, California Attorney General (Janet Gaard)
Ron Cottingham, Peace Officers Research Association of California
Glen Craig, Sacramento
Chief Pete Dunbar, Pleasant Hill Police Department
Jim Fox, San Mateo County District Attorney
Rabbi Allen Freehling, Los Angeles
Michael Hersek, California State Public Defender
Sheriff Curtis Hill, San Benito County
Prof. Bill Hing, University of California at Davis
Michael P. Judge, Los Angeles County Public Defender
George Kennedy, Santa Clara County District Attorney
Michael Laurence, Habeas Corpus Resource Center
Alejandro Mayorkas, Los Angeles
Judge John Moulds, Sacramento
Prof. Cookie Ridolfi, Santa Clara University School of Law
Douglas Ring, Santa Monica
Greg Totten, Ventura County District Attorney
Gerald F. Uelmen, Executive Director
Chris Boscia, Executive Assistant
California Commission on the Fair Administration of Justice
900 Lafayette St., Suite 608, Santa Clara, California 95050
Telephone 408-554-5002; FAX 408-554-5026
Website: http://www.ccfaj.org.

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