The low cost of injustice

The following opinion was originally published by NewsBuzz, by Milwaukee Magazine, on September 3, 2010.

By Matt Hrodey

The wrongful imprisonment of Green Bay’s Cody Vandenberg for 15 years on a recently overturned conviction of robbery and attempted homicide was one of the worst such cases in state history. Even if prosecutors decide against retrying or appealing the case, however, Vandenberg is unlikely to collect much in reparations, because Wisconsin’s compensation program for exonerated convicts is badly underfunded.

A shrinking minority of states, 23, offers no compensation program at all for people wrongfully imprisoned. In Wisconsin, after proving their innocence before the Wisconsin Claims Board, a panel of state officials representing the Governor, state Legislature, Department of Administration and Department of Justice, exonerated convicts can receive up to $5,000 a year. Total compensation is capped at $25,000.

“It’s miserable. It’s the lowest compensation amount of any state in the nation and the second-lowest cap in the country,” says Keith Findley, a UW-Madison law professor and co-founder of the Wisconsin Innocence Project, a program at the university providing legal aid to people who may have been wrongfully convicted.

Findley is part of Vandenberg’s defense team. Facing a total of 80 years in prison, the now 45-year-old man was released on Tuesday after a court of appeals decision reversed his conviction in Brown County Circuit Court and concluded “he is entitled to a new trial in the interest of justice.” Vandenberg had been convicted of the 1996 robbery and stabbing of a Bellevue man. But Vandenberg’s alleged getaway driver, Larry Pearson, has since confessed to the crime – most recently under oath in Brown County Circuit Court in a hearing for post-conviction relief requested by the defense.

Pearson and Vandenberg were coworkers at a local repair shop. During Vandenberg’s trial in 1996, Pearson testified as part of his own plea deal but didn’t implicate Vandenberg. Pearson instead claimed the stabbing wounds were inflicted by a third man, a stranger he had met at a bar.

At the trial, the prosecution argued Pearson was trying to cover for his friend Vandenberg by making up the story about “the stranger” and called to the stand a man who had spent time in jail with Pearson. The fellow inmate said Pearson told varying accounts of what happened on the night in question, including one version where Vandenberg was the stabber. But the key piece of evidence, according to the appeals court, was the stabbing victim’s identification of Vandenberg. He and Vandenberg looked similar – but Vandenberg had a beard at the time.

To the jury, it sounded like convincing evidence. But a series of wrongful convictions have led judges across the country to treat identifications of defendants with skepticism. “Eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and is responsible for more wrongful convictions than all other causes combined,” the Wisconsin Supreme Court noted in 2005.

The appeals court wrote that the victim’s identification of Vandenberg was the key to the prosecution’s case, a key that looked a little rusty in light of new evidence provided by the defense that the victim was intoxicated during the attack with a blood alcohol content of .22. Prosecutors lacked “any physical evidence tying Vandenberg to the scene,” the opinion says. Yet Pearson’s bloody shoe-print was found inside the trailer.

Pearson, it turns out, actually confessed to his defense attorney at the time he was guilty of the stabbing – but the lawyer, because of attorney-client privilege, was unable to reveal the confession.

Vandenberg’s first appeal failed. Filed after his trial, it was based not on Pearson’s confession, unknown to him at the time, but on his contention that his defense attorney didn’t present evidence establishing an alibi for him.

Released from custody on Tuesday, Vandenberg will remain under house arrest until he returns to court on Sept. 28 to learn if prosecutors will retry his case in light of Pearson’s confession or challenge the appeals court decision before the Supreme Court.

Making a claim of innocence

If they decide to do neither, Vandenberg can petition the Claims Board for compensation, but in doing so he faces a months-long process whereby he must prove his innocence with “clear and convincing” evidence. “For many truly innocent people, that’s a burden that’s difficult to meet. How do you prove a negative?” says Findley.

Wisconsin law also requires exonerated convicts to prove they didn’t contribute to their conviction in some way through a false confession or some other means. This violates the national Innocence Project’s guidelines for state compensation programs. “This denies justice to those who were coerced, explicitly or implicitly, into confessing or pleading guilty to crimes it was proven they did not commit,” the guidelines say.

Some states provide immediate assistance to exonerated prisoners for housing, psychological counseling, medical aid, job training or other needs, none of which are provided by Wisconsin. “They have nothing as they walk out of prison,” says Mary Delaney, a Madison attorney and member of the Wisconsin Exoneree Network.

Wrongful imprisonment, she says, “is extraordinarily traumatic. A lot of people become agoraphobic and don’t feel like they can rejoin the community.” Long gaps in their employment history are difficult to explain to prospective employers – who may have also seen the charges filed against them on the Wisconsin Circuit Court Access website.

Delaney says quite a few people are denied compensation because they can’t prove their innocence to the Claims Board. Findley says most of the Wisconsin Innocence Project’s clients have not received compensation, either because they were denied or never pursued benefits. The group has lobbied the state Legislature to expand the benefits and make them easier to obtain.

Still, some people wrongly incarcerated in Wisconsin prisons have received the full compensation allowed. One Oak Creek man, Chaunte Ott, released in 2009 after 12 years in prison when DNA evidence cleared him of a rape and murder conviction, received the full $25,000 in an April Claims Board meeting.

Robert Lee Stinson of Milwaukee, also released last year after DNA evidence cleared him of murder charges, spent 23 years in prison. He’s still in the process of seeking compensation.

Texas offers some of the most generous benefits, up to $80,000 a year for life, even though the state is known for its tough criminal justice system and use of the death penalty. People wrongfully imprisoned in the federal system can receive up to $50,000 a year for each year of incarceration or up to $100,000 a year if they spent time on death row.

States have created compensation programs because lawsuits against states for wrongful imprisonment are notoriously difficult. Federal civil rights lawsuits require the former convict to prove the state intentionally incarcerated him or her without due cause.