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Once a leader in wrongful conviction compensation, Wisconsin has been lapped by other states

By: Erika Strebel, [email protected]//November 22, 2016//

Once a leader in wrongful conviction compensation, Wisconsin has been lapped by other states

By: Erika Strebel, [email protected]//November 22, 2016//

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Even if Brendan Dassey’s attorneys successfully appeal his conviction for taking part in the murder of a freelance photographer, the now-27-year-old who was featured in the Netflix documentary “Making a Murderer” would still have the burdensome task of proving he deserves compensation for the years he spent in prison.

Brendan Dassey listens to testimony at the Manitowoc County Courthouse in Manitowoc in 2010. A judge on Monday ordered Dassey’s release from federal prison while prosecutors appeal the case. (Sue Pischke/Herald Times Reporter via AP, File)
Brendan Dassey listens to testimony at the Manitowoc County Courthouse in Manitowoc in 2010. If Dassey is eventually cleared of his murder conviction, he will still have the difficult task of proving he deserves compensation for the years he spent in prison.

Wisconsin law requires those who are seeking compensation for wrongful incarceration to demonstrate  their innocence to the state Claims Board. Doing so requires that they present clear and convincing evidence showing they could not have possibly committed the alleged crime. They must also prove that none of their past actions contributed in any way to their conviction.

The clear-and-convincing standard is even higher than the bar litigants must cross to obtain damages in civil cases, says Keith Findley, a professor at the University of Wisconsin Law School. To win civil damages, plaintiffs must show that the preponderance of the evidence favors their case, meaning the evidence weighs 51 percent in their favor.

The clear-and-convincing standard is a much higher hurdle. “You need to prove that innocence by really, really strong evidence,” Findley said. “That’s often very difficult.”

Findley, who is also a director of the Wisconsin Innocence Project, noted that it’s notoriously tough to prove a negative assertion, which is what the wrongfully convicted are trying to do when they argue they could not have committed an alleged crime. Merely getting a conviction reversed is not in itself enough to entitle someone to compensation.

According to Wisconsin Claims Board records, 19 people  sought compensation for wrongful convictions between May 2006 and October this year. Of those requests, the board denied nine and granted 10.

Eight of the requests came from people who had been exonerated through the work of the Wisconsin Innocence Project. Of those, seven were granted and one was rejected.

Of the cases granted, victory came in two only after the exonerees had gone on to appeal decisions initially denying them compensation. The compensation itself is meager given the decades some recipients have spent in jail.

In Wisconsin, an exoneree can collect no more than $5,000 a year for wrongful imprisonment. The total they can receive is also capped at $25,000, plus attorney’s fees.

The federal government, for its part, offers people wrongfully convicted of federal crimes up to $50,000 for every year they spend behind bars and up to $50,000 for every year spent on death row.

Wisconsin has become considerably less generous than many other states, despite its history of being a leader in providing compensation to the wrongfully convicted. In 1913, Wisconsin and California became the first two states in the country to offer compensation to people who had been unjustly imprisoned.

This put them ahead of the federal government by a full 25 years. Yet, despite that early head start, most other states have since either caught up or pulled ahead.

More than half of the states now have statutes offering compensation to the wrongly convicted. Wisconsin’s law, meanwhile, has not undergone a thorough revision since 1980.

Dassey’s case — and his association with his uncle, Steven Avery — is likely to play a part in the arguments of both those who think the current law should be made more generous and those who contend that safeguards should remain in place to prevent compensation from going to people who are not truly “innocent.” Anyone who watched the “Making a Murderer” documentary will recall that Avery had been the poster child just over a decade ago for a bill meant to bring about various reforms in the criminal-justice system and the way it deals with wrongful convictions.

The proposal stemmed from recommendations made by a committee of judges, prosecutors, defense attorneys, law professors and others. Avery had made headlines two years earlier when he was released from prison after spending nearly two decades behind bars for a rape that DNA evidence later proved he could not have committed.

Avery initially benefited from a wave of public sympathy, especially following revelations that law-enforcement officers had several opportunities to connect the crime to the true culprit. Most of that good feeling evaporated, though, with the murder of the freelance photographer Teresa Halbach, who  disappeared following a visit to the Avery family’s salvage yard to take pictures for Autotrader magazine.

Avery was charged with that crime and eventually convicted and sentenced to life in prison. Yet, even while the state prosecuted him for murder, lawmakers passed the bill inspired by his previous wrongful conviction.

The new law made a number of changes to standard investigation procedures. It, for instance, set new standards for the retention of DNA evidence, placed a priority on the use of DNA in post-conviction cases, required that interrogations be recorded and set police procedures governing evidence provided by eyewitnesses.

A decade later, state Rep. Dale Kooyenga, R-Brookfield, and Gary Hebl, D-Sun Prairie, introduced legislation that would have increased the compensation offered to the wrongfully convicted. The bill would have provided as much as $50,000 for every year someone spent in prison.

The total amount a person could receive would have been set at $1 million. In a provision meant to keep lawmakers from having to revisit the compensation amounts at regular intervals, the figures would have been adjusted upward every five years to keep pace with inflation.

The bill also would have let the wrongly convicted take state health insurance and make use of services such as job training and housing. Although the proposal met with a favorable reception in the state Assembly, it did not get a vote in the Senate.

The resistance came in part to a provision that would have allowed legal records to be removed from the state’s courts website. Kooyenga said he and Hebl plan to put forward a similar  bill in the Legislature’s next law-making session that starts in January.

He said they will take steps to alleviate the concerns that doomed the previous attempt to failure, adding that he and others are still working on the specifics.

Findley said he and his colleagues at the Wisconsin Innocence Project hope to play a large role in shaping the bill. At the same time, he expressed some disappointment that lawmakers have so far showed little willingness to reconsider the standard requiring the wrongfully convicted to prove their innocence with clear and convincing evidence.

Kooyenga, asked whether his  proposal would call for lowering that bar, merely  said that lawmakers would also be seeking the advice of the Claims Board.

“Our legal system in the context of time and place is one of the best in the world,” Kooyenga said. “This bill doesn’t mean there’s something significantly wrong with our legal system, but we do have to acknowledge that a very small percentage of the time, things do go wrong.”

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