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In 3rd attempt, wrongfully convicted man to get compensation (UPDATE)

By: Dan Shaw, [email protected]//September 11, 2013//

In 3rd attempt, wrongfully convicted man to get compensation (UPDATE)

By: Dan Shaw, [email protected]//September 11, 2013//

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When David Turnpaugh appeared before the Wisconsin Claims Board on Wednesday for the third time in three years, he knew he would receive compensation for his wrongful conviction on prostitution and bail-jumping charges in 2006.

Now the only question is: How much will he get?

The claims board, which is charged by state law with making restitution to people who have been wrongfully incarcerated, has twice before turned down Turnpaugh’s request for compensation but was under a judge’s orders to reverse course on Wednesday. In a June appeal of a previous rejection of one of Turnpaugh’s claims, Milwaukee County Circuit Court Judge Paul Van Grunsven explicitly ordered the board to determine how much Turnpaugh should be awarded to equitably compensate him for his “wrongful conviction and attorney’s fees.”

The board took testimony from Turnpaugh and his lawyer, Todd Nelson, of the Milwaukee-based firm Stupar & Schuster, S.C., in a public hearing Wednesday but deliberated on the case in a closed session. The board, composed of representatives of the governor’s office, Senate, Assembly, Department of Administration and Department of Justice, usually release its decisions within 20 days, said Patricia Reardon, program and policy analyst for the board.

Nelson argued his client was entitled to $36,000. That amount, he said, includes both lawyer’s fees and two of the $5,000 payments that state law requires go to wrongfully convicted persons for every year they are imprisoned.

Turnpaugh, in fact, was in jail for 3 days, on house arrest for 57 days and on probation for 10 months following his 2006 conviction, in which he was found guilty of soliciting a prostitute after being accused of asking a female undercover police officer to masturbate for him for money. The following year, the Wisconsin Court of Appeals reversed the lower court’s decision and a related bail-jumping conviction, finding that whether or not Turnpaugh committed the alleged act, which he has always denied, he never offered money in return for “sexual intercourse.”

The Appeals Court determined that since Turnpaugh had been wrongfully convicted of something that is not even a crime under Wisconsin statutes, he was “innocent as a matter of law.” Nelson argued that although his client had spent less than a year in prison, he was entitled to two $5,000 payments because he had been wrongfully convicted on two separate charges.

Nelson argued the amount was in reality small compensation for Turnpaugh, given what he had endured.

“Would you go through that personally for $10,000?” Nelson said. “My guess is that each of us would ask ourselves why would we give up a year of freedom for $10,000?”

Members of the Claims Board, while acknowledging Wednesday they were under a court order to compensate Turnpaugh, questioned whether the statutes supported the proposed double payment. They also questioned whether Turnpaugh should be reimbursed only for the money he paid attorneys to have his conviction overturned, or also for what he has since spent to obtain compensation from the claims board.

Turnpaugh acknowledge that whatever the board gave him, it could not make up for the business his wrongful conviction had cost him or for the damage to his reputation. Turnpaugh said he runs a computer-networking company, which he declined to name, and said many of his clients decided to cease working with him once they learned of his legal troubles.

Brian Hagedorn, board representative for the governor’s office, said Wisconsin law does not call for making someone who has been wrongfully incarcerated “whole,” meaning it does not require reimbursement for all the harm caused by a false conviction.

“Obviously, it doesn’t make financial sense for you to pursue all of this,” he said. “So I’m assuming you are after some acknowledgement of wrongdoing by the state.”

Turnpaugh said those legal costs would not be so great had his claims not been rejected by the board the previous two times he went before it. In his first appearance, in December 2010, he sought $13,682.89 in lawyer’s fees. The requests was turned down because, the board reasoned, Turnpaugh had not shown “clear and convincing evidence” that he was innocent. The Court of Appeals later disagreed, saying Turnpaugh had been convicted of a nonexistent crime and was thus clearly innocent.

In his second attempt, Turnpaugh asked for $23,201.20 to pay for his attorney’s fees. The claims board elected to award him nothing, reasoning that his actions had contributed to his conviction, albeit a wrongful conviction. In ordering the case back to the claims board, Judge Van Grunsven said similar reasoning could be used to prevent almost anyone who is wrongfully incarcerated from obtaining compensation.

“For example, under the claims board’s interpretation,” the judge wrote, “a person wrongly charged with intent to buy drugs would not be eligible for compensation simply because they were standing on a corner in a bad neighborhood having a conversation with a known drug dealer.”

Now Turnpaugh is asking for $26,000 in lawyer’s fees. Nelson said one of the few justifications the board could have for turning down the request would be evidence suggesting Turnpaugh had paid his lawyers an unreasonable amount.

But that’s not the case, Nelson said, saying his firm charged Turnpaugh $200 an hour. Turnpaugh said that if his case ultimately costs taxpayers a lot of money, the members of the claims board should not escape blame.

“The people who were supposed to be making the right call,” he said, “have made it exponentially worse.”

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