James Tillman served 18 years behind bars for a rape that DNA evidence later showed he did not commit.
Tillman can never get those years back. But in 2007, the state Legislature gave him $5 million in compensation for the injustice. Lawmakers also enacted a wrongful incarceration statute detailing the requirements that must be met the next time a person seeks compensation for being wrongly convicted and imprisoned.
That next time is approaching.
Similar to when a plaintiff seeks permission to sue the state from the state claims commissioner, J. Paul Vance Jr., exonerees must now follow the statutory hearing procedure before receiving compensation.
The process is entirely new to the people involved with the very first case — that of Kenneth Ireland — which is expected to go to a hearing before Vance. Ireland spent 21 years behind bars for a rape and murder he did not commit. Another man is now serving a 60-year prison sentence for the very same crime.
Through his lawyers, Ireland is seeking between $5.5 and $8 million in compensation. A hearing date has not yet been set.
A second high profile exoneration expected to go before the claims commissioner is that of Miguel Roman who served 20 years in prison for a murder that DNA evidence now shows was committed by another man. His lawyer, Rosemarie Paine, of Jacobs & Dow in New Haven, said she’s seeking about $8.5 million.
The state Attorney General’s Office represents the state’s interests in these cases. Last week, the AG responded in writing to Ireland’s 100-page damages analysis by saying that the state will not contest the compensation he seeks. A spokesperson also noted that they believe Roman deserves compensation, as well, though Paine noted that she has not yet submitted their formal damages analysis.
At a hearing, Ireland is expected to detail what he went through before the claims commissioner. From there, the “special master,” attorney James P. Brennan of Waterbury, who has an economics background, will provide Vance with his opinion of what the compensation should be. Brennan did not return calls for this story.
From there, Vance would issue a decision that the state Legislature can either accept or reject.
“Being the first to probe the contours of the statute carries with it the need to be flexible and reasonable,” said one of Ireland’s lawyers, William Bloss, of Koskoff, Koskoff & Bieder in Bridgeport. “Just as we’re trying to figure out the best application of the statute procedurally, I’m sure the claims commissioner, special master and attorney general are doing the same. We have said from the day the claim was filed, it was much more important to do this right than to do it quickly.”
Vance, the claims commissioner, described the statute as broad, giving him a lot of discretion, unlike some states that cap damages or issue a specific dollar amount per year of wrongful incarceration.
“If you were in jail for six months or six years or 20 years, it’s not something people generally want,” said Vance. “We’re going to spend some time and come to a thoughtful decision, not just a linear equation we plug into a computer.”
Vance noted that any compensation he deems worth $20,000 or less does not require approval from the Legislature.
Vance said he and Brennan will take such things into consideration as the facts of each case and what other states do.
Vance said there are a total of 15 pending cases before him of former defendants claiming they were wrongfully incarcerated in some way. Unlike the higher profile Ireland or Roman cases, he said some may be seeking compensation for just a few months behind bars.
According to the statute, a person must have served all or some of their sentence before being found innocent by a court, a distinction from someone who served time in jail pending trial and was later found not guilty or someone who was released post-conviction on a legal technicality.
The state Attorney General’s Office said they agreed with the claims commissioner’s desire to bring in a special master to evaluate the compensation claims.
“We believe the process established by the legislature to provide compensation for wrongfully incarcerated individuals is fair and appropriate,” said Jaclyn Falkowski, a spokesperson for the state Attorney General’s Office. “The statute governing these claims is unique, and it establishes a role for this office somewhat different from that in typical contested claims against the state.”
The state Attorney General’s Office plans to oppose compensation for a third of the 15 claimants so far. “It is appropriate under the law for us, as we have in some instances, to actively oppose claims where the circumstances do not meet the statutory definition of wrongful incarceration,” said Falkowski.
As example is the pending case of Willie Cox, who is seeking $1 million in compensation for wrongful incarceration. However, the state Attorney General is asking the claims commissioner to dismiss the claim because the court did not find Cox innocent of the crime.
Cox was convicted of attempting to assault a police officer. The state Supreme Court later vacated the conviction based on a charging error despite noting that the conviction was supported by the evidence.
Another case being challenged is that of David Cutler, who was convicted of drug trafficking in 1975 and spent 17 months behind bars. Cutler says he was wrongfully convicted and seeks $500,000 in compensation. However the state is arguing that Cutler does not qualify for compensation as the conviction was set aside on a legal technicality and the court never determined if the man was actually innocent.
Other lesser known claimants might make a better case.
Lawrence J. Miller Jr. was convicted in 1983 and sentenced to 32 years behind bars for assaulting two teens in Danbury, one of whom was sexually assaulted. One of the teens identified Miller as the assailant. The other teen could not identify the perpetrator.
After Miller’s conviction, another man came forward and confessed to the crime. Miller’s conviction was overturned in 1996 and was granted a new trial. The following year prosecutors dropped the charges.
Hubert Thompson was convicted of rape and kidnapping in 1998. DNA evidence exonerated him in 2012. However, much of that time period was spent in federal prison for an unrelated gun charge. He began serving time in prison in state court for the rape charge in 2007.
A petitioner seeking compensation that is sure to cause a stir is that of Richard Fourtin. Fourtin was found guilty of sexually assaulting a severely handicapped woman. However, in 2012, the state Supreme Court overturned the conviction, stating that despite the fact that the 26-year-old woman could not speak and has barely any ability to move, there was no evidence that she could not communicate her refusal to have sex with the man.
The state’s highest court’s ruling upset numerous public interest groups at the time, including Connecticut Sexual Assault Crises Services.
According to the Innocence Project based in New York City, there is no uniformity in the way states handle claims for compensation from someone who had been wrongfully incarcerated.
Twenty-nine states including Connecticut, plus Washington D.C. and the federal government, have statutes for wrongful incarceration compensation. But the statutes themselves differ drastically.
For instance, in New Hampshire, regardless of how many years an innocent person spent behind bars, the most you can be compensated is $20,000. Whereas in Texas the compensation is $80,000 per year spent behind bars plus an additional $25,000 per year spent on parole, probation or as a sex offender.
Texas also provides for attorney’s fees and lost wages, counseling expenses for up to a year, child support, and tuition for up to 120 credit hours.
Montana provides educational needs for someone wrongfully incarcerated but offers no monetary compensation whatsoever.
Rebecca Brown, director of state policy reform for the Innocence Project, said who determines the compensation amounts also differs from state to state. Some states it’s by a judge, others by lawmakers.
“There’s no consistency whatsoever in who is ultimately making the determination around whether an individual is compensated,” said Brown.
There’s also different limitations as to the qualifications depending on the state. For instance, New Jersey doesn’t allow compensation to anyone later found to have been wrongfully incarcerated if they pleaded guilty to the offense they were accused of. New Jersey did recently increase their per year of incarceration compensation amount from $20,000 to $50,000, Brown noted.
In Florida, if you have a prior felony conviction, then you cannot receive any compensation for wrongly spending time behind bars.
Brown advocates for states to offer a minimum of $50,000 per year of compensation as well as extensive social services.
“It’s our hope we’ll see more of a national movement towards robust compensation laws,” said Brown. “There should not be any situation where an actually innocent person finds themselves fiercely battling to receive statutory damages from the state.”•