Seeking Justice for the Erroneously Convicted: Assessing the First Decade of Compensation Claims under Chapter 258D

Hartnagel_Davidby David Hartnagel

Legal Analysis

By the late 1990s and early 2000s, due to increased use of DNA and other scientific evidence, and further scrutiny of eyewitness identification, the number of criminal exonerations in both Massachusetts and the nation grew significantly.  As of 2002, over 100 prisoners nationwide were found to be innocent and released after additional scientific testing of evidence; and between 1997 and 2002, six men in Massachusetts were exonerated after new DNA testing proved they were innocent of the crimes for which they had been convicted.[i]  As attention on wrongful convictions increased, so did interest in providing exonerated individuals with a means to seek relief redress for time served, erroneously, in prison.  As a result, in late 2004, Massachusetts enacted Chapter 258D.  See St. 2004, c. 444; G.L. c. 258D.

This legislation was intended, in part, to meet the Commonwealth’s “moral obligation” to compensate those who had been erroneously convicted.[ii]  Before Chapter 258D was enacted, Massachusetts had compensated only two exonerated men over the prior half-century, both by special legislative action.  In 1958, Santos Rodriguez, who had spent over two years in prison for allegedly killing a woman, received $12,500 after the true killer confessed.  Similarly, in 1992, Bobby Joe Leaster, who had served 15 years of a life sentence for murder, received a $500,000 annuity when new eyewitness testimony exonerated him.[iii]  In contrast, since the enactment of Chapter 258D, approximately 50 people have sought relief, resulting in the Commonwealth paying over $9 million to nearly two dozen individuals whose convictions had been overturned.

This article examines Chapter 258D’s key provisions and looks back at its first decade, analyzing how well the Act has worked in compensating those who were erroneously convicted, and proposing changes to make the Act more effective.

I. Key Provisions of the Erroneous Conviction Statute
A. To Seek Compensation, a Claimant Must First Be Eligible

Chapter 258D sets forth strict threshold criteria for an individual even to be considered eligible for compensation.  A person must have been convicted of a felony and sentenced to not less than one year in a state prison – and served all or part of that sentence.  G.L. c. 258D, § 1(C).  In addition, the individual must have either received a pardon from the Governor or been granted judicial relief by a state court “on grounds which tend to establish the innocence of the individual.”  G.L. c. 258D, § 1(B).[iv]  The term “tend to establish” was offered by then-Governor Romney to “limit[] the class of claimants to those who received judicial relief on grounds that directly implicate innocence.”  Guzman v. Commonwealth, 458 Mass. 354, 358-59 (2010).  The phrase has been further interpreted to mean “grounds resting upon facts and circumstances probative of the proposition that the claimant did not commit the crime.”  Id. at 362 (internal citations and quotations omitted).  But such grounds must tend to do more than merely “assist the defendant’s chances of acquittal.”  Id. at 360.[v]

In the first appellate decisions interpreting the statute, Guzman and Drumgold v. Commonwealth, 458 Mass. 367 (2010), the claimants’ underlying convictions were overturned on grounds that undoubtedly tended to establish their innocence.  In Guzman, the claimant’s defense attorney failed to call two eyewitnesses who would have testified that the claimant was not the person who committed the crime.  458 Mass. at 363-65.  In Drumgold, the Commonwealth failed to disclose exculpatory evidence concerning promises and rewards made to a prosecution witness and newly discovered evidence relating to the credibility of a critical eyewitness.  458 Mass. at 372-76.

More recently, though, courts have considered factual scenarios that are less clear cut, such as where claimants’ convictions were reversed simply due to insufficient evidence.  In the first instance, Renaud v. Commonwealth, 471 Mass. 315 (2015), the Court agreed with the Commonwealth that convictions reversed for insufficient evidence do not “categorically” equate to actual innocence, but the Court concluded that the absence of certain types of evidence may nonetheless tend to show actual innocence.  Id. at 319.  Courts must therefore “follow a case-specific, fact-based approach to determine whether judicial relief based on insufficient evidence tends to establish actual innocence in any given case.”  Santana v. Commonwealth, 88 Mass. App. Ct. 553, 555 (2015).  As it turned out, the courts in Renaud, Santana, and Nguyen v. Commonwealth, 88 Mass. App. Ct. 1111, 2015 WL 6680985 (Nov. 2, 2015) (Rule 1:28 opinion) all held that the claimants were eligible under Chapter 258D.  See Renaud, 471 Mass. at 317 (larceny convictions reversed where the evidence consisted largely of only an EBT card bearing the claimant’s name at the crime scene); Santana, 88 Mass. App. Ct. at 555 (drug conviction reversed because the only evidence of constructive possession was claimant’s presence as a passenger in the car where the drugs were discovered); Commonwealth v. Nguyen, 76 Mass. App. Ct. 1137, 2010 WL 2268933, at *3 (June 28, 2010) (Rule 1:28 opinion) (gun conviction reversed because of insufficient evidence that claimant had knowledge that the firearm was in the vehicle where it was found).  As a result, the more recent appellate trend in these types of cases has been to hold in favor of claimants’ eligibility.

B. To Receive Compensation, a Claimant Has the Burden To Prove His Actual Innocence

If a claimant meets the eligibility requirements, he will face a trial at which he must, by clear and convincing evidence, prove that he did not commit the crime for which he was originally charged, or any other felony arising out of or reasonably connected to the facts supporting the indictment or complaint, or any lesser-included felony.  G.L. c. 258D, § 1(C)(vi).

Chapter 258D, however, also recognizes that an erroneous conviction trial may take place years after the underlying crime occurred.  Evidence and testimony may have been lost, forgotten, damaged, or destroyed, all through no fault of any party.  Thus, Chapter 258D  provides that a court “shall exercise” its discretion “when determining the admissibility and weight of evidence” by considering:  “any difficulties of proof caused by the passage of time, the death or unavailability or witnesses, or other factors not caused by the claimant, or those acting on the claimant’s or the commonwealth’s behalf.”  Id. § 1(F).  Moreover, “[t]he court shall instruct the jury that it may consider the[se] same factors when it weighs the evidence presented at trial.”  Id.  Chapter 258D thus balances the need for the parties to provide the factfinder with as much evidence concerning the allegations and defenses, while acknowledging the limitations on the reliability of such evidence.

C. Types of Relief Available Under Chapter 258D

A successful claimant can receive four potential types of relief:  (1) $500,000[vi]; (2) 50 percent tuition reduction from any public university or college in Massachusetts; (3) services to address physical and emotional deficiencies related to one’s conviction and incarceration; and (4) expungement or sealing of records.  G.L. c. 258D, §§ 5, 7.  However, one who settles with the Commonwealth, where no judgment is entered in his favor, is ineligible to seek expungement or sealing.  See Memo. of Decision and Order, Commonwealth v. Baran, Civil Action No. SUCV2010-00034 (Mass. Super. Dec. 12, 2013).  In addition, a claimant is barred from recovering punitive damages, interest, costs, or attorney’s fees.  See G.L. c. 258D, § 5(A).

II. Actions Under the Erroneous Conviction Statute

Approximately 50 actions have been filed under Chapter 258D and the vast majority have proceeded along one of two paths:  settlement or dismissal due to ineligibility.  The initial cases largely concerned convictions that had been reversed well before 2004[vii] because of scientific testing, perjured or manufactured evidence, or faulty eyewitness testimony.  Due to the uncontroverted evidence of innocence, those cases often ended in settlements at or near the maximum amount of monetary relief.[viii]  The Commonwealth has settled approximately half of all Chapter 258D cases for over $9 million, which cases (except for one) were filed in the statute’s first five years.  After 2010, the Commonwealth has settled few cases and none recently.  Many of the remaining closed cases were often dismissed as the claimants were ineligible, i.e. their convictions were reversed on grounds that did not tend to establish their innocence, their claims were untimely, or they did not otherwise satisfy the statute’s requirements.

Just three cases have gone to trial, and only one – brought by Ulysses Charles – ended with a verdict for the claimant.  But this figure will likely increase in the near future:  as of this article’s publication, around a half dozen cases are pending before the Superior Court and at least two others are pending appeal (with respect to claimants’ eligibility).  Also, a number of these actions, such as Renaud, Santana, and Nguyen, are unlikely to settle.  These cases are largely based on convictions that were reversed due to insufficient evidence, as opposed to newly discovered affirmative evidence of innocence such as DNA evidence, recanted testimony, or police misconduct.  Similar circumstances existed in the two other Chapter 258D actions that went to trial, which ended with verdicts in favor of the Commonwealth.  Ultimately, with the presently pending Chapter 258D cases, the Commonwealth will likely be more inclined to take its chances at trial (with the attendant cap on damages and unavailability of interest and fees) than settle beforehand, in light of the claimants’ high burden at trial and the lack of clear exonerating evidence.

III. Challenges to Fulfilling Chapter 258D’s Goals, and Potential Solutions

With just over a decade’s worth of experience with Chapter 258D, some challenges to its efficacy have come to light.  Certain changes, some small in nature, could greatly improve its workability and help achieve its purpose more fully.

A. Chapter 258D Actions Proceed Slowly, Preventing an Erroneously Convicted Individual From Receiving Timely, Effective Compensation
1. Chapter 258D Actions Are Assigned to the Slowest Schedule in the Superior Court

Because of the pace at which Chapter 258D actions proceed, they place an unnecessary burden on claimants.  This is particularly so when one considers that claimants’ cases typically involve considerable investigation and discovery well before any Chapter 258D action is even contemplated.  One reason for the slow pace is that Chapter 258D actions, as actions against the Commonwealth, are assigned to the most deliberate schedule, Track A, under current Superior Court Standing Orders.  Track A provides for two years of discovery, and targeted resolution in three years.  See Superior Court Standing Order 1-88.

As one example, Bernard Baran served approximately 20 years in prison before his conviction was reversed.  Commonwealth v. Baran, 74 Mass. App. Ct. 256 (2009).  By the time Baran filed his Chapter 258D action in 2010, at least a half dozen substantive and evidentiary proceedings had occurred over the prior two decades.  Yet, Baran was forced to proceed via Track A.  Ultimately, Baran settled for less than the statutory cap in 2012, instead of waiting – possibly even years longer – for greater compensation and a potential judgment of innocence.

Even where claimants had claims that would otherwise exceed $500,000 in damages, if not for the Chapter 258D cap, due to lengthy incarcerations, and presented uncontroverted evidence of innocence, they have at times faced long delays before receiving compensation.  Stephan Cowans, Angel Hernandez, Dennis Maher, Neil Miller, Marvin Mitchell, Anthony Powell, and Eric Sarsfield all had convictions reversed as a result of scientific evidence,[ix] yet each waited from seven months to almost two years after filing their Chapter 258D complaints before settling for the maximum amount of compensation under the statute.

These delays are contrary to the statute’s purpose, particularly when a conviction is reversed as a result of uncontroverted scientific evidence and the claimant’s innocence should not be in question.[x]  As a result, Standing Order 1-88 should be amended to allow for Chapter 258D cases to be brought under an accelerated schedule.  In the alternative, Chapter 258D should be amended to provide a right to a speedy trial, akin to other civil matters.[xi]  Another possible solution is mandatory mediation between a claimant and the Commonwealth in cases where convictions are overturned on the basis of uncontroverted scientific evidence.  This final idea finds further support in light of the newly-enacted Chapter 278A, which provides for post-conviction access to DNA testing for convicted individuals asserting their innocence.  G.L. c. 278A, et seq.

2. The Commonwealth’s Right to Interlocutory Appeal of Eligibility Determinations

Another cause of significant delay in Chapter 258D actions is the Commonwealth’s right to interlocutory appeal of an adverse decision on the issue of a claimant’s eligibility.  The Commonwealth may pursue such an interlocutory appeal pursuant to the doctrine of present execution because Chapter 258D represents a limited waiver of sovereign immunity.  See Irwin v. Commonwealth, 465 Mass. 834, 842 (2013).  The claimant is then faced with a difficult choice:  (a) stay discovery, preserve resources, and wait for a potentially lengthy appeal period to be completed or (b) proceed with discovery, incur expenses, and impose on the claimant’s time and mental health, while running the risk of losing the appeal on the threshold issue of eligibility.[xii]

One possible solution is for the Appeals Court to alter its internal practices, prioritizing Chapter 258D actions when the issue is one of a claimant’s eligibility.  The Appeals Court regularly expedites cases involving custody and adoption issues concerning children; the same could be done for Chapter 258D erroneous conviction claims.  An alternative would be to amend Chapter 258D to impose a fee-shifting measure for any unsuccessful appeal by the Commonwealth on the issue of eligibility.

B. The Statutory Cap on Monetary Relief Prevents Fair Compensation

After a decade in practice, the Chapter 258D damages cap of $500,000 should be increased or modified.  Simply put, an individual who was erroneously convicted and served months, years, or decades in prison is very likely to receive a damages award exponentially lower than one who alleges that the Commonwealth violated his civil rights or discriminated under Chapter 151B, as neither of those claims has a cap on damages.

When the statute was enacted in 2004, capping monetary damages at $500,000 was intended to limit the Commonwealth’s fiscal exposure.  This concern, however, is outweighed by the moral imperative of providing individuals the opportunity to be compensated for years lost in wrongful confinement.  In the initial years after Chapter 258D’s passage, the Commonwealth settled many claims with people exonerated long before the law’s enactment, resulting in millions of dollars of damages awards.  But since 2011, the Commonwealth has paid less than a million dollars in compensation under Chapter 258D to only a few exonerees, and nothing since 2013.

Modifying the damages cap would provide the Commonwealth, courts, and juries with the flexibility to compensate more fairly those individuals most deserving.  For example, Angel Hernandez served 13 years before being cleared through DNA evidence.  He ultimately received a maximum settlement under the statute; however, that amount equaled only around $38,000 for every year he should not have been in prison.

The Commonwealth need not forgo a cap – other jurisdictions with analogous compensation schemes have more flexible forms of relief, some providing limits based on years of incarceration.[xiii]  As a result, claimants could be entitled to a maximum amount of money for every year they erroneously served in prison, for example $100,000 per year, thereby providing greater compensation to those persons who have suffered the greater harm.

The enactment of Chapter 258D filled a critical void – it both acknowledged that mistakes are made in our criminal justice system and that the Commonwealth should compensate the victims of such errors.  After a decade in practice, however, Chapter 258D presents certain obstacles for erroneously convicted individuals to receive compensation for the years they were wrongfully imprisoned.  Consistent with the statute’s goal to address the Commonwealth’s moral obligation to these individuals, Chapter 258D should be amended to advance its original intent: fairly and efficiently compensating erroneously convicted individuals.

 

[i] Fisher, Stanley Z., Convictions of Innocent Persons in Massachusetts: An Overview, 12 B.U. Pub. Int. L.J. 1, 72 n.3 (2002).

[ii] See Testimony of Representative Patricia Jehlen (March 19, 2003), available at http://web.archive.org/web/20040807031601/http://www.patjehlen.org/2506testimony.html (last visited January 2, 2016).

[iii] Wisneski, Ashley H., “‘That’s Just Not Right’:  Monetary Compensation for the Wrongly Convicted in Massachusetts,” 88 Mass. L. Rev. 138, 139 & nn.20-21 (2004).

[iv] Such relief must have vacated or reversed the conviction and either the indictment or complaint was dismissed (or a nolle prosequi entered) or the individual was found not guilty if a new trial was conducted.  G.L. c. 258D, § 1(B)(ii).

[v] The Court in Guzman also provided a non-exhaustive list of procedural, evidentiary, and structural deficiencies that may serve as the basis for the reversal of a defendant’s conviction, but would not satisfy Chapter 258D’s eligibility provision in light of the Governor’s amendment: a violation of a defendant’s Sixth Amendment right to confrontation; a violation of a defendant’s Bruton rights; a prosecutor’s improper closing argument; and an erroneous disallowance of a defendant’s peremptory challenge.  Guzman, 458 Mass. at 358 n.6; see Silva-Santiago v. Commonwealth, 85 Mass. App. Ct. 906, 909 (2014); Riley v. Commonwealth, 82 Mass. App. Ct. 209, 215-16 (2012).

[vi] One concern of legislators prior to Chapter 258D’s enactment was the financial burden it might place on the Commonwealth.  In the end, the payment of the $500,000 annuity to Leaster in 1992 served as a guidepost for the maximum amount of recovery allowable under the statute.  See Note 3 (citing then-Representative Jehlen’s testimony before the House Committee on Public Safety (Mar. 15, 2001)); McCarthy, Brendan, “House passes wrongful conviction bill,” The Boston Globe (Oct. 23, 2003); G.L. c. 258D, § 5.

[vii] Individuals whose convictions had been overturned prior to 2004 had three years after the enactment of Chapter 258D to file suit.  2004 Mass. Acts c. 444, § 3.

[viii] This includes the settlements for, among others, Stephen Cowans, the Estate of Louis Greco, Angel Hernandez, Donnell Johnson, Dennis Maher, Neil Miller, Marvin Mitchell, Marlon Passley, Anthony Powell, Guy Randolph, and Eric Sarsfield.  See http://www.newenglandinnocence.org/category/exonerees/ (last visited January 2, 2016).

[ix] See Note 8.

[x] Certain legislative sponsors of the original statute anticipated that such cases would be handled promptly.  Then-Senator Diane Wilkerson said she “might understand [the Attorney General] scrutinizing a case involving a defendant who was wrongly convicted because of, say, a flawed police investigation” but questioned the delays in compensation for those who filed claims who “were exonerated because of airtight DNA evidence.”  Saltzman, Jonathan, “Reilly accused of funds delay for ex-inmates,” The Boston Globe (June 21, 2005).

[xi] See, e.g., G.L. c. 151B, § 9 (for unlawful discrimination); G.L. c. 231, § 59F (for parties age 65 or older).

[xii] The latter is what occurred in Irwin.  The Commonwealth appealed the denial of its motion to dismiss in August 2011; the claimant did not agree to a stay pending appeal; the parties engaged in full discovery for nearly two years; and in July 2013, the Supreme Judicial Court dismissed the case due to the claimant’s ineligibility.

[xiii] See, e.g., 28 U.S.C. § 2513(e); Ala. Code §29-2-159; Fla. Stat. § 961.06(e); Minn. Stat. § 611.365; N.C. Gen. Stat. § 148-84; Ohio Rev. Code Ann. § 2743.48(E)(2); Tex. Civ. Prac. & Rem. Code Ann. § 103.052; Vt. Stat. Ann. tit. 13, § 5574(b); Wash. Rev. Code § 4.100.060(1)(d)(5).

David Hartnagel is an attorney at Sheehan Phinney Bass + Green P.A. in Boston where he practices complex commercial and employment litigation for both business and individual clients.  Previously, as an Assistant Attorney General, he served as counsel on behalf of the Commonwealth in some of the cases cited in this article.

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