Last week, an administrative judge denied exoneree James Richardson compensation after she somehow determined that Mr. Richardson had not proved his actual innocence of the poisoning of his children. In 2008, when the legislature passed their flawed “automatic” compensation scheme, we aggressively advocated against the bill because we knew that the adversarial process in the bill for “proving” actual innocence, which is triggered by prosecutorial opposition to the claim, would be unworkable. It would require a person to essentially relitigate their case where they now have the burden to meet a standard that is higher than that which the prosecutor must meet to convict.
Courts are not designed to determine actual innocence. In fact, the term “actual innocence” has no legal meaning at all. Hell, in some DNA cases, the prosecutor is the only person on earth who remains blind to the truth despite conclusive scientific evidence of innocence. What we are left with is a situation not where an individual’s actual innocence determines compensation. After all, James Richardson is actually innocent. Janet Reno, former State Attorney for Miami, led the charge in favor of his exoneration. Instead, the only people who get compensated are those who the prosecutor agrees should be compensated.
So our system of redress depends not on facts or what courts and prosecutors have done before but on whatever feeling is in the prosecutors gut when the compensation claim is filed. If the prosecutor feels like they were steamrolled during the postconviction process or they just think that they were not treated fairly by the Florida or United States Supreme Court, they can have a second bite at the apple to victimize the wrongly incarcerated individual one last time.
We told the legislators that their fancy compensation scheme wouldn’t work. Now comes the hard work of changing it to something that will.