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Former convict wants $450K from state (UPDATE)

By: Dan Shaw, [email protected]//December 9, 2014//

Former convict wants $450K from state (UPDATE)

By: Dan Shaw, [email protected]//December 9, 2014//

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A former construction foreman was able to get a rape charge dismissed, but his lack of a legal means to prove his innocence might prevent him from getting compensation for the three years he spent behind bars.

Maxwell Verkuilen, a 37-year-old Appleton resident who said he had worked at a now-dissolved construction company before being found guilty in 2003 of sexual assault, appeared before the State of Wisconsin Claims Board on Tuesday to request $450,000 he said he is owed for his wrongful imprisonment. In February 2007, Verkuilen persuaded an appellate court to overturn his conviction after finding that his attorney had committed legal malpractice.

The trouble for Verkuilen is that, to receive compensation from the Claims Board, he must furnish “clear and convincing evidence” of his innocence. But he never had an opportunity to exonerate himself in a criminal courtroom.

Before the retrial could start, the Outagamie County judge who would have presided over the case granted a motion requiring the alleged victim open her mental-health and medical records for inspection by the court. The woman refused, and the court dismissed the charges against Verkuilen.

The Daily Reporter’s policy is to not identify the alleged victims of sexual assaults.

Verkuilen argued Tuesday that the cancelling of the retrial deprived him of any opportunity to prove his innocence. He also said his lawyer at the original criminal trial, Joseph Norby, of Appleton, failed to present much of the evidence that might have exculpated Verkuilen.

“The jury only got to hear one side of the evidence,” he said. “I didn’t stand a chance in a contest that was so one-sided.”

After the Claims Board’s hearing Tuesday, Verkuilen said he was working at the now-dissolved Steve Skotzke Construction Inc., Greenville, when he was arrested in 2002. Verkuilen said he had risen over the course of about eight years to the position of construction manager and had several employees under his supervision.

According to a case summary prepared by Claims Board staff members, Verkuilen went out with friends June 10, 2002, to an Appleton bar, where he met the alleged victim. Later that night, the two went back to his place, a room he rented in the house of his sister and her husband, and had sexual intercourse.

Verkuilen was arrested the next day and charged with two counts of sexual assault. At the trial, the prosecutors relied heavily on testimony provided by a nurse who said the alleged victim showed physical signs of being forced into having nonconsensual intercourse.

Verkuilen’s conviction was overturned in part because he proved his lawyer had not called the witnesses who could have possibly rebutted the testimony. Verkuilen said Tuesday during the hearing that another nurse had examined the alleged victim and instead concluded that the sex had been consensual.

Verkuilen also said his lawyer, who had been assigned to him by the court, never called to the stand his sister and brother-in-law or the alleged victims’ friends, all of whom might have shed light on the circumstances surrounding the supposed crime.

Norby, the attorney, could not be immediately reached Tuesday afternoon.

After his chance for a retrial was quashed, Verkuilen sued Norby in civil court. The jury found that Verkuilen was not guilty of sexual assault and that Norby had committed malpractice.

The jurors awarded Verkuilen $700,000 but reduced the amount to $456,191.50 after finding that he had been negligent in not trying to force his lawyer to present a better defense. Norby, who did not have malpractice insurance, declared bankruptcy shortly after the ruling, and Verkuilen has not collected anything.

Verkuilen said Tuesday that his request for $450,000 in compensation is tied to the money he should have received from Norby. Verkuilen said he thinks the state owes him something for appointing a defense lawyer who failed to take so many basic steps.

Even if Verkuilen is successful before the Claims Board, there is little chance he will get the full amount. Wisconsin law provides $5,000 for every year of wrongful imprisonment.

The Claims Board could decide that special circumstances warrant going beyond the $15,000 Verkuilen might get for his three years behind bars. Still, state law caps the compensation for wrongful convictions at $25,000.

But for Verkuilen to get even a penny, according to state law, he must first furnish clear and convincing evidence of his innocence. That requirement might be the biggest stumbling block.

Melinda Tempelis, Outagamie County district attorney, conceded to the Claims Board that the civil jury had found Verkuilen to be not guilty of the rape charges. But she said the legal standard to win an argument in civil cases, the preponderance of the evidence, is easier to meet than the clear and convincing language used by the Claims Board, let alone the still stricter “beyond a reasonable doubt” standard employed in criminal cases.

“His not being retried does not present clear and convincing evidence of his being innocent,” Tempelis said.

Verkuilen, though, maintained he is owed something for his hardships, which did not end once he left prison. Verkuilen said he briefly tried to return to the construction industry but decided he was not getting paid enough for the long hours he was putting in.

He is now a retirement planner in the Appleton area. He also, according to Wisconsin court records, has had a long series of encounters with the law, many of them related to traffic violations.

This year, he was found not guilty by reason of mental disease or defect on charges of recklessly endangering safety, operating a vehicle with a controlled substance and trying to flee from officers in Fond du Lac County. But of all his legal troubles, Verkuilen said, it is the dismissed rape charges that continue to cost him.

“I can’t be retried,” he said. “So I did what other people in my position would have done and brought this case to civil court.”

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