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By the distance between “factual innocence” and “actual innocence,” John Tennison and Antoine Goff lost their chance to collect from the state Victim Compensation and Government Claims Board Friday. The board refused to grant payment to the two men, who spent 13 years in prison for a San Francisco gang-related murder before their sentences were overturned last year. The three-member panel unanimously sided with Administrative Law Judge William Hoover, who ruled in November that the board need not consider a San Francisco judge’s finding that Tennison and Goff were factually innocent of the crime. “Factual innocence doesn’t mean you didn’t do it,” explained Deputy Attorney General Michael Farrell, speaking before the board hearing. “What it means is that there is no reasonable cause to believe you did it. You might have done it, but there’s no evidence [that you did].” Tennison and Goff had sought about $500,000 apiece for wrongful incarceration. The compensation board has the authority to pay $100 per day of incarceration after a claimant has been wrongly convicted and imprisoned for a felony he or she did not commit. Elliot Peters, one of two Keker & Van Nest attorneys who took on Tennison’s case and got his conviction overturned, says he sees no difference between actual and factual innocence. He also said the board should have considered the S.F. district attorney’s factual innocence stipulation. “Either you were guilty of killing someone, or you weren’t,” he said. Gerald Uelmen, a Santa Clara University professor of criminal law and evidence, said he saw no legal distinction between factual and actual innocence. “I don’t know what the difference would be,” he said. “Either way, someone was wrongfully convicted, and they should be compensated, absolutely, if they spent 13 years incarcerated.” Attorneys for both Tennison and Goff said they would challenge the compensation board’s decision by filing a writ of mandamus in superior court. “We expect to win that because the board and the administrative law judge made significant errors,” said Peters. In his presentation to the compensation board, Peters underscored some of those errors — including Judge Hoover’s reliance on the original jury verdict. As a result, he argued, Hoover did not weigh pertinent information that later came to light, such as federal court findings that the prosecution had withheld exculpatory evidence, that a key prosecution witness later recanted her trial testimony, and that another man had confessed to the murder on tape. The compensation board’s standard for awarding money for wrongful incarceration is a difficult one to meet. Claimants must prove by a preponderance of evidence that they were innocent of the charges they were convicted of, or that they “did nothing by way of act or omission” to contribute to their arrest. “After 14 years, the shooting of Roderick Shannon remains somewhat of a mystery,” wrote Hoover. “Notwithstanding the Herculean efforts of claimants’ counsel to establish their clients’ innocence, the evidence does not lead in the direction they desire.” In their arguments to the board, Peters and Diana Samuelson, Goff’s attorney, expressed doubt that the state would award compensation to Tennison and Goff. The AG’s Farrell pointed out that he had recommended compensation in other cases, including some where DNA had exonerated the claimants. Leonard McSherry, for instance, collected $481,000 from the compensation board after DNA evidence cleared him of kidnapping and raping a 6-year-old girl, a crime for which he spent nearly 13 years behind bars. “It was a pretty slam-dunk case,” said his lawyer, Mark Overland, a name partner at Los Angeles’ Overland Borenstein Scheper & Kim. In Tennison and Goff’s case, the testimony of their attorneys simply didn’t carry the day, said Michael Ramos, a compensation board member and the San Bernardino County district attorney. “Every witness in this case I didn’t find credible at all,” said Ramos. “I could see why the administrative judge wouldn’t.” Tennison and Goff also have filed civil suits against the city of San Francisco, as well as several police officers and an assistant district attorney in connection with their convictions. Attorneys for both men said the compensation board’s decision would likely have no bearing on those suits. Reporter Pam Smith contributed to this report.

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