Thursday, 15 May 2008

Wrongful Incarceration Act may not solve problems it was intended to

By Stephen D. Price • FLORIDA CAPITAL BUREAU • May 12, 2008

Lawmakers have called the bill an "automatic trigger" that will make it easier and quicker for those who unjustly lost their liberty to get a measure of financial compensation from the state.

Instead of years of legal and political maneuvering to, as Gov. Charlie Crist has said, right a wrong, the legislation was designed to hasten and level the process. The state will pay $50,000 for every year spent in jail for a crime a person didn't commit.

But the Wrongful Incarceration Act, which Crist has said he will sign, may be loaded with just as many complexities as the legislative process it is to replace.

The cases of seven men released from Florida prisons after DNA evidence cleared them of their crimes show how the legislation may not simplify things. Five of the men aren't eligible for the automatic provisions because they have prior felonies, contrary to the "clean-hands" requirement of the bill.

Even the cases of the two who are eligible provide a glimpse of just how difficult things could be.

That's not what the bill was supposed to do. It was written to avoid the pitfalls of the claims system, the legislative act required to override the state's sovereign immunity caps on any settlement larger than $200,000.

It was the way that process has worked — dependent on effective, connected lawyers and advocates — that lawmakers wanted to fix.

Most recently, Alan Crotzer spent more than two years navigating the maze of the Legislature to get a settlement for the more than 24 years he spent behind bars for crimes he was later cleared of. This year, the Legislature approved a $1.25 million payment to Crotzer.

Wilton Dedge, a Brevard County man who spent 22 years in prison for a crime he didn't commit, won a $2 million settlement from the Legislature in 2005, nearly 18 months after he was released from prison.


For some, getting compensated may be as difficult as proving they are innocent all over again.

Luis Diaz, who had been convicted of being the Bird Road rapist in Coral Gables in the late 1970s, will have a difficult case to prove under the global bill, his lawyers say.

Diaz, one of two Florida men eligible for compensation under the bill, was convicted of seven rapes, but DNA evidence exonerated him of two of those rapes and he was freed in 2005 after serving 25 years in prison. The problem is that for him to receive compensation, his lawyers his lawyers will have to prove he didn't commit the other five rapes.

"They will have to go and reconstruct why he isn't the rapist from over 30 years ago," said one of Diaz's lawyers, Curt Kiser, a former House and Senate member from Dunedin and now is a lobbyist in Tallahassee.

Kiser said police have long claimed that one man was guilty for all seven rapes. "Some of the (witnesses) may not be alive, or moved away."

Chad Heins is also eligible for compensation under the new plan. He was freed in December after serving 13 years in prison, when DNA evidence showed he was not guilty of first-degree murder and attempted sexual battery.

Heins now lives in Wisconsin where he works on a dairy farm. Prosecutors are still investigating that case.

Orlando Boquete, who in 2006 was exonerated from a sexual battery and burglary conviction based on DNA evidence, won't have an easy road to compensation either. The new law prevents those with prior felonies from receiving automatic compensation, but Boquete's prior felony is a conviction for escaping while serving his wrongful imprisonment.


Advocates for the wrongfully incarcerated say they will wait to see how the process works, but they have doubts whether all the proven innocent will be compensated.

"You're innocent when we release you but you're not innocent enough to be compensated?" said Seth Miller, executive director of the Innocence Project of Florida. "These two ideas just don't jibe together."

To file for compensation under the Wrongful Incarceration Act, an applicant, who has been exonerated of a conviction, must go before a judge and the prosecutor in that case must decide whether to argue against his or her fight for compensation or agree to it. Either way, a judge makes the final decision.

During the legislative session, the bill was most criticized for its "clean hands" provision which would exclude anyone with a prior felony from receiving compensation.

Those people are still able to file a claims bill, a lengthy procedure.

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