Bills would change way Claims Board operates (UPDATE)

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If a bill introduced this week had been law earlier this year, David Turnpaugh would be out $780.90.

That’s the money he was awarded this week as compensation for time he spent on house arrest for his wrongful conviction on prostitution and bail-jumping charges. Assembly Bill 534, introduced the same day as the decision in Turnpaugh’s case, would prohibit the state from paying the wrongfully convicted for time they have spent on electronic monitoring or in types of confinement other than imprisonment.

Such a change would have left Turnpaugh only with the $41.10 for the three days he spent in jail for his 2006 conviction, along with the $36,025.89 he received for attorney’s fees. Had the bill been the law as early as 2010, though, he wouldn’t have got any of it.

That was the year Turnpaugh, a Milwaukee resident, began his three-year battle to win compensation from the Claims Board. The charges against him had been overturned after an appellate judge determined the act he had been accused of, asking an undercover police officer to let him watch her masturbate – which he denies doing – was not a crime in Wisconsin.

Turnpaugh’s first two attempts at getting compensation were rejected; the money he received Monday only came after a Milwaukee Circuit Court judge ordered that it be paid. Assembly Bill 534 would bar the courts from taking up appeals of board decisions.

Turnpaugh said Wednesday that the bill would only make it harder for the wrongly convicted to obtain justice and appears to be aimed at preventing an outcome such as the one in his case from ever occurring again.

“If the state intends to put people through a process that sucks your soul out and makes you want to kill yourself, then the current law is perfect,” he said. “And now they want to make it worse.”

State Rep. Pat Strachota, R-West Bend, the sponsor of AB 534 and a member of the Claims Board, said the legislation is not a response to any one particular case and is mainly meant to clarify ambiguities that exist concerning the powers of the board. Beyond that, she said, it’s also intended to establish once and for all that the Claims Board is different from a court of law and is thus justified in applying different standards in its decisions.

“We didn’t feel the circuit court had that authority” to order that Turnpaugh be compensated, Strachota said.

The bill would give the board the right to “award compensation only if the board determines that a petitioner’s claim for compensation is one which, on the basis of equitable principles, this state should assume and pay,” and would stipulate that a judge’s finding a person “not guilty” is not tantamount to deeming the person innocent.

“We are not a court of law and we have different rules,” Strachota said. “I think it’s hard for people to understand that – especially in the legal profession.”

The introduction of AB 534 means there are now two bills before lawmakers calling for reform of the Claims Board, both of which have support from at least some of the Republicans who control the Legislature. Rather than take compensation decisions out of the hands of judges, Assembly Bill 519 would remove them from the Claims Board, leaving the board its responsibility of acting as an arbiter in disputes over money and contracts.

AB 519, which has been discussed for months but was formally introduced only on Friday, would instead give that authority to administrative law judges, who proponents have said have the fact-finding powers needed to bring cases to prompt and satisfying conclusions. Both bills, meanwhile, would increase the maximum amount of money a person can receive for each year spent behind bars on a false conviction, but by different amounts. AB 519 would take it to $50,000 a year, the same as paid by the federal government, whereas AB 534 would put it at $15,000 a year and cap the total at $200,000.

Current law allows $5,000 for each year of imprisonment, up to a maximum of $25,000. Advocates for change have noted that the amount of compensation Wisconsin offers is the lowest among states that provide anything.

Strachota, though, pointed out that 21 states provide no sort of monetary compensation for wrongful convictions.

The increased compensation proposed in AB 534, though not as great as that offered by AB 519, is the best part of the legislation, said Keith Findley, a law professor at the University of Wisconsin-Madison and a director of the Wisconsin Innocence Project. Everything else in the bill would result in the state’s taking a step backward, he said. Not only would it give the Claims Board unchecked authority over compensating the innocent, but it would leave in place two standards that the board specifically cited in rejecting Turnpaugh’s first two attempts at obtaining restitution.

The first time Turnpaugh went before the board, in December 2010, his request was turned down because he had failed to a meet a statutory standard demanding that he furnish “clear and convincing evidence” of his innocence. The Court of Appeals later disagreed, saying Turnpaugh had been convicted of an act that is not a crime and he was thus clearly innocent.

In the second attempt, the Claims Board decided again to not award him anything, reasoning that his actions had contributed to his conviction, albeit a wrongful conviction. In ordering the case back to the Claims Board, Milwaukee Circuit Court Judge Judge Paul Van Grunsven said similar arguments could be used to prevent almost anyone who is wrongfully incarcerated from obtaining compensation.

Findley said eliminating the provision barring compensation from going to those who contributed to their own wrongful convictions is important because false confessions are one of the main reasons why innocent people end up behind bars.

“Anyone who is stone-cold innocent, who falsely confessed, would be denied compensation under this,” he said.

The Republican author of AB 519, state Rep. Garey Bies, R-Sister Bay, could not be reached for this article. His Democratic co-sponsor, state Rep. Gary Hebl, D-Sun Prairie, said it’s not entirely clear to him what the bill’s reference to “equitable principles” means and he wonders why the Claims Board should not be held to the same standards as a court of law, especially when it’s considering matters of innocence and guilt.

“It is the substitute for the court of law, it was what the state created in lieu of a court of law for these individuals,” he said.

Parts of AB 534 also appear to be related to another case to go before the Claims Board in recent years. Forest Shomberg of Madison was released in prison in 2009 after serving six years for a sexual assault that DNA evidence later proved he had not committed. Like Turnpaugh, Shomberg failed in his first appearance before the claims board and had to go to the courts for a finding that he was entitled to compensation.

He died before the board could award him anything. His mother, Annette Bruner, has since said she intends to pursue his claim.

AB 534 would only allow her to seek compensation for attorney’s fees and similar expenses, not for each year her spent behind bars for a crime he did not commit. The bill also would prevent the state from paying the relatives of people who died from deliberate or negligent actions. Bruner has said she believes Shomberg committed suicide.

For Turnpaugh, though, the legislation has one clear source: the Claims Board’s wanting to prevent its decisions from being overturned in court again.

“They are mad,” he said, “that David beat Goliath.”

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