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Michael Warren, who represents three of the five men convicted as teen-agers in the Central Park jogger case, is confident that his clients will get compensation from the state of New York for their long prison terms. But legal experts warn that getting compensation for wrongful imprisonment is an uphill battle, even in New York, which is thought to be the most generous of the 17 jurisdictions that have a statutory compensation scheme. According to New York Court of Claims statistics, out of the 201 former prisoners who have presented claims since 1985, only 12 received compensation by court decision, in amounts ranging from $40,000 to $1.9 million, while an additional 15 were paid between $6,750 and $2 million through settlement. Outside of the 17 jurisdictions with a statutory scheme, the prospects are dismal, says Pace University law professor Adele Berhnard. She surveyed the issue in a 1999 law review article and has kept abreast of changes. Bernhard claims that the inflexibility of tort law and civil rights doctrine prevents most exonerated prisoners from ever getting recompense. Such exonerations are not rare, particularly in the wake of DNA testing. The Innocence Project at Benjamin N. Cardozo School of Law, a clinic established by Barry C. Scheck and Peter J. Neufeld to help convicts clear their names through DNA testing, estimates that the relatively new technology has freed 116 prisoners nationwide. Other prisoners have been released after their appellate lawyers brought to light shoddy police work, shaky testimony and incompetent defenses. $10 AND A JACKET Exonerated convicts rarely get state help as a matter of course. Alberto B. Lopez, law professor at Northern Kentucky University, recently wrote an article in the Georgia Law Review bemoaning the lack of compensation for exonerated convicts. He titled the article “$10 and a Denim Jacket,” because that’s what Louisiana gave to Michael Ray Graham Jr. when he was released last year after serving 14 years on death row. Graham’s attorney had to buy his bus ticket home, Lopez says, and the jacket was several sizes too big. In December, Newsday reported that New York convicts freed on parole could expect “job referrals, psychological counseling and sometimes housing accommodations,” but that none of those services was available to those freed on account of innocence. Warren would not discuss how he and the other attorneys for the Central Park jogger defendants plan to get compensation for their clients, whose prison terms ranged from five to 12 years. He doesn’t want to tip his hand and is focusing on getting their convictions vacated. That seems likely, since Manhattan District Attorney Robert M. Morganthau has conceded in pleadings that the jurors would not have convicted the five teen-agers of the infamous rape and beating of a woman in Central Park in 1989 had they been aware of newly discovered evidence pointing to convicted murderer and rapist Matias Reyes. New York Supreme Court Judge Charles Tejada is expected to rule on Feb. 6. Warren could take the traditional route of filing suit under tort law or state and federal civil rights statutes. Bernhard and Lopez agree that those remedies are inadequate to the task. In her 1999 article, Bernhard noted that if law enforcement officials had probable cause to make an initial arrest (a standard easily met), then in most cases they will not be liable for the incarceration of an innocent person on theories of wrongful arrest or malicious prosecution. Recovering against a negligent defense attorney is unlikely unless his performance fell to the “remarkably low standard” of “ineffectiveness,” Bernhard wrote. Even then, if appointed by the state, an attorney might be entitled to the protection of sovereign immunity, a doctrine that also shields police officers and prosecutors. Finally, she wrote, a prisoner may run afoul of statutes of limitations if, as is often the case, it takes years to persuade the authorities that newly discovered evidence proves his or her innocence. In some states, the exonerated can petition the legislature for compensation. The problem with that, Bernhard notes, is that success depends more on a prisoner’s political connections (or those of his attorney) and on the political atmosphere than on the merits of his or her case. Fifteen states, the District of Columbia and the federal government have compensation statutes on the books. In addition, supporters of a Massachusetts proposal are optimistic that the state legislature will approve it by the end of the year. Winning restitution is no cakewalk in those states, however. Five states, including California and Illinois, will not compensate a prisoner unless he or she has received a pardon. In Bernhard’s view, that’s an unreasonable condition, because executive pardon is purely discretionary and many governors are reluctant to exercise the power, particularly if a prisoner has already been freed through court proceedings. Under the federal statute, a presidential pardon can be dispensed with only if the prisoner is retried and acquitted. The amount of compensation available under the statutes varies widely. The federal system comes in at the low end, with a maximum of $5,000 no matter how long the term of imprisonment. STATE CAPS Three states have caps of less than $100,000, while Texas limits the total to $500,000. Eight states have no cap at all. Bernhard and Lopez say that New York has the most generous statute. Bernhard adds that New York has chalked up the longest track record, proving that a compensation scheme need not bankrupt a state. The New York system, put in place in 1985, has been used frequently enough that lawyers can now put a price tag on claims. Daniel M. Perez, an associate of civil rights lawyer Ronald L. Kuby, is representing two exonerated men, Anthony Faison and Charles Shepherd, in a pending case before the New York Court of Claims. He says that the court’s judges — there are no juries — award lost wages and between $100,000 and $200,000 per year of incarceration for emotional damages. Coming in at the high end of the range are former prisoners who did time in maximum-security facilities, who had never been to prison before, or who had been convicted of a sexual offense likely to spark hostility from other inmates. Perez says that the cases are very difficult, because of the hurdles built into the statute and because the “state fights every one of these cases to their dying breathe.” Perez points out that a claimant cannot merely rely on a court reversal or a pardon, but must affirmatively prove his innocence to the court of claims judges by clear and convincing evidence. It shouldn’t be hard for Warren’s clients to prove that they did not beat or rape the Central Park jogger, given the DNA evidence pointing to Reyes. But the five men face another hurdle under the statute, according to Perez — a claimant must prove that he is innocent of every offense charged in his indictment, even if some of those charges were dismissed prior to trial. Although the five Central Park jogger defendants were convicted of offenses, including robbery and assault, against other visitors to the park, Warren downplays that difficulty by noting that Morgenthau recommended that they be cleared of all convictions. However, Morgenthau’s court pleading reveals that his rationale for blanket reversal is that because prosecutors portrayed the teen-agers’ actions as a single continuous course of “wilding” rather than discrete offenses, it would be unreasonable to suppose that the jury had bracketed the evidence, thus leaving all the convictions tainted. In fact, the pleading makes note of some facts suggesting that the teen-agers may be guilty of the other offenses. For instance, Morgenthau says that the teen-agers were able to identify the locations of the other offenses in their 1989 confessions (which were inaccurate about the location of the attack on the jogger) and that one of Warren’s clients, Raymond Santana, admitted to some offenses in recent discussions with prosecutors re-examining the case. Those confessions will present another challenge for Warren, Perez predicts. A claimant must show that his own acts did not cause or bring about his own conviction. Bernhard says that the court has been known to deny compensation to claimants who dug their own graves through confession, and that Warren would probably have to prove that the confessions were coerced.

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