The Price of Wrongful Conviction

Sitting at a cousin's kitchen table in Southern California one sunny afternoon, Timothy Atkins, age 45, has the unhurried look of a man who is accustomed to waiting, who steels himself for bad news, and who has been hardened by disappointment.

Recently he lost his job as a gang intervention specialist in Venice. At the same time, his marriage has fallen apart, and contact with his young son has been sporadic at best.

"Who knows what my life would have been," he says as he recalls the dreams he once had of becoming a professional athlete like his younger brother Larry, who played linebacker for both the Kansas City Chiefs and the Oakland Raiders. But that dream ended abruptly for Timothy Atkins when, at age 19, a jury convicted him of robbery and first-degree murder.

Over the years that followed, Atkins spent time at four of California's toughest corrections facilities: Tehachapi, Lancaster, Corcoran, and Soledad. But as bad as that was, Atkins says, it's a lot worse when you know you didn't commit the crimes you were convicted of. And in his case, he spent 23 years behind bars before the same Los Angeles Superior Court judge who had sentenced him acknowledged the error.

"Although the law recognizes an interest in the finality of judgments," Judge Michael Tynan wrote in a February 2007 habeas finding, "it also recognizes the substantial interest that justice be served and that the innocent not suffer from crimes they have not committed." (In Re Atkins, No. A090938 (Los Angeles Super. Ct. order issued Feb. 8, 2007).)

Atkins was not just a free man at that point, but, in his mind, a vindicated one as well. And under section 4900 of the California Penal Code, Tynan's ruling suggests that the state owed Atkins a fair amount of money. In fact, at the statutory rate of $100 for each day he spent behind bars after his wrongful conviction (see Cal. Penal Code § 4904), he should be paid no less than $713,100 from the state's general fund. Or so Atkins and his pro bono legal team thought.

But the state tribunal that's charged with reviewing these claims - the Victim Compensation and Government Claims Board in Sacramento - has its own way of determining who will and who will not get financially compensated. And in March 2010 a three-member panel that acted on the board's behalf rejected Atkins's claim, saying that he had failed to prove his innocence by a preponderance of the evidence - even though the very same evidence had persuaded Judge Tynan to vacate the conviction.

"It's very frustrating, and it makes no sense," says Justin P. Brooks, project director of the California Innocence Project of Southern California and one of three attorneys who represented Atkins. "This is supposed to be about doing the right thing. But instead the board is just retrying these people, and in the end [the defendants] still don't get any money."

Still, the board doesn't always rule against formerly incarcerated claimants: Over the past twelve years it's approved 11 such claims. But that's less than one-fifth of the 59 erroneous conviction cases it decided (another 16 are pending). The largest amount - $756,900 - was paid to a San Diego man who spent nearly 21 years behind bars for the murder of a two-year-old and was exonerated after new evidence came to light. At the other end of the range, $17,200 went to a Sacramento County man who had spent nearly six months in prison for a murder that occurred during a robbery two other men later confessed to. Yet for every claim the board has heard since 2000, it's turned away another because of missed deadlines, ineligibility, or other jurisdictional problems. (See "The Long Odds")

Wayne Strumpfer, the compensation board's chief counsel, oversees a staff of seven attorneys. "I do think it's a fair process," he says. "I inherited the program two years ago when I came here, and looking at the history of it and the way that we maintain it now, I think it's a very fair process."

Strumpfer also denies suggestions that the board is in any way second-guessing the judges who overturn the claimants' convictions. "No," he says, "if we just happen to find evidence to not be sufficient, that's not a repudiation against anybody. We just look at the big picture."

With the board's approval rate as low as it is, though, some claimants decide that a better approach is to file a lawsuit in civil court and avoid the board altogether. This is what Thomas Goldstein did. He spent 24 years in prison for murder before a judge determined that his conviction was based on false testimony by jailhouse informants who had cut deals with prosecutors. Goldstein's attorney, Ronald Kaye, says he purposely steered his client away from the compensation board. "If there was a negative finding," he explains, "it could have an impact on my client in civil court." The strategy paid off: In 2010 the City of Long Beach settled with Kaye and his client for $8 million - far more than section 4900 would have called for.

But the civil litigation process isn't always such a good option. For one thing, it requires targeting a specific defendant who can be credibly accused of subverting justice in an egregious fashion - perhaps a prosecutor who knowingly solicits false testimony, or a cop who uses excessive force to obtain a false confession.

In Atkins's case, however, the circumstances weren't nearly so clear-cut.

During the pre-dawn hours of New Year's Day, 1985, Vicente Gonzales and his wife, Maria, were about to get out of their vehicle when two armed men approached them. One of the men shot and killed Vicente with a shotgun, then emptied his victim's pockets. The other grabbed Maria's necklace. Six days later, police arrested Atkins for the crimes.

At the time, Atkins was 17 years old and known to be a member of a local gang. He also admitted after his arrest that he'd been trying to sell a stolen car radio, and he indicated he had a serious cocaine habit to support. But he denied any role in the robbery and killing. And his story did not change even after a friend testified that she heard him admit to taking part in the crime. Nor did it change when Maria Gonzales identified Atkins from a photo as the man who robbed her at gunpoint. In 1988 Atkins was convicted at trial and sentenced to 32 years to life in prison.

Many years passed, a crucial witness was located, the Innocence Project took up the case, and Judge Tynan granted an evidentiary hearing in response to a writ of habeus corpus.

That's when the case against Atkins seemed to fall apart. For one thing, the woman who claimed Atkins boasted about the killing now said she made up that part of her story. As she explained it, the police were asking her questions about a string of unrelated robberies, and they threatened to indict her as an accessory unless she incriminated someone. A second witness who had testified for the prosecution confessed a similar motive. And when the judge looked at Maria Gonzales's testimony again, he was struck by discrepancies: She initially described her assailant as just over five feet tall, weighing somewhere between 130 and 145 pounds. Atkins weighed closer to 175 and stood a full six feet tall.

Judge Tynan set aside the conviction and gave prosecutors 60 days to put Atkins on trial a second time. But it never got that far: The Los Angeles District Attorney's office announced it would not retry the case.

After Atkins's release, his legal team put in a section 4900 claim based on his seven-thousand-day prison ordeal. The compensation board, however, was not swayed. The hearing officer assigned to the case noted that even though the woman who recanted her testimony seemed sincere, "it only shows that Atkins did not admit to committing the murder; it is not proof that Atkins is innocent." He also dismissed the discrepancies in Maria Gonzales's identification of the suspect: "[S]ince all the suspects [in the photo lineup] were significantly taller than five feet, it is clear that Gonzales is not an accurate judge of height."

Strumpfer acknowledges that for the board, it wasn't an easy decision. "It was a close case," he says, adding: "We're comfortable that it was a fair hearing."

California is one of 27 states, plus the District of Columbia, that has a formal process in place to compensate the erroneously convicted who have served time. (See Cal. Penal Code §§ 4900-4906.) The statute dates back to 1913 and currently requires claimants to either prove their innocence by a preponderance of the evidence, or prove that the crimes in question never occurred. (The statute also disqualifies anyone who contributes to their own arrest, either by volunteering or knowingly expressing guilt. (See Cal. Penal Code § 4903; Cal. Code Regs. Tit. 2, §§ 640-645.)

For a trial judge to grant habeas corpus relief on the basis of newly discovered evidence, the court must conclude that the evidence "completely undermines the entire structure of the case presented by the prosecution" and must "point unerringly" to innocence. (Ex Parte Lindley, 29 Cal. 2d 709, 724, (1947).) That's a much higher standard of proof than the preponderance of evidence standard the compensation board is supposed to judge these cases by. Yet in case after case, the same evidence that passes muster under the higher standard gets shot down, apparently under a lower one.

"The fundamental thing is that the [burden of proof] standard for compensation is supposed to be lower," says Justin Brooks." If the standard is lower, why are we even litigating it?"

Strumpfer insists that the board is not judging these cases by a higher standard than the law calls for. "If you look at the cases we've granted and the cases we've denied, I don't think there's a change in philosophy or a tightening," he says. "Of course," he adds, "the Innocence Project would have a different opinion."

Much like any trial court, the Victim Compensation and Government Claims Board entertains both witness testimony and lawyerly arguments. However, in more than a third of the cases it's heard since 2000 involving former inmates seeking compensation, the claimants made their cases without the benefit of legal counsel. This appears to have put them at a significant disadvantage: Board statistics indicate that claimants represented by lawyers succeed 22 percent of the time, while those who aren't prevail in just 15 percent of the cases heard.

Another concern about the process has to do with deadlines. Although under the statute claimants must file for compensation within two years after they are freed (see Cal. Penal Code § 4901), the board is under no specific time constraints to respond. "It's not in the statute," Strumpfer says.

Linda Starr is among those who view the process as blatantly unfair. A cofounder of the Northern California Innocence Project at Santa Clara University School of Law, she has represented both winning and losing claimants.

In one case, Starr represented John Stoll, a Kern County man who served nearly 20 years in prison for 17 counts of child molestation before a superior court judge determined that the testimony used against him had been procured improperly and was thus entirely unreliable. The compensation board awarded Stoll $704,700.

By contrast, Starr found the board entirely unreceptive to the case she made for Kenneth Wayne Foley. Foley had spent more than 11 years in prison after he was wrongfully convicted of burglarizing a truck parked in a lot in Campbell. With two prior convictions to his name, including one for burglary, Foley was sentenced to 25 years to life in prison under the California "three-strikes" law. But 10 years into his confinement allegations of prosecutorial misconduct surfaced, casting serious doubt on Foley's latest conviction. A new investigation ensued, and ultimately the conviction was vacated. Yet the board still denied his plea for restitution.

Is there a coherent pattern here? Starr doesn't think so.

Confusion can also arise when a claimant whose conviction has been vacated takes the additional step of securing from a judge a formal finding of factual innocence. (See Cal. Penal Code § 851.8.) Such findings, it is presumed, make the claim of innocence all the more compelling before the board. Yet they too offer no guarantee of compensation, say board officials, although they add that appellate court findings of factual innocence somehow carry more weight than those issued by a trial judge.

"That doesn't make any sense to me," says Starr. After all, it's the trial court that reviews the crucial testimony. The court of appeal merely affirms or overturns what a lower court has done.

(Note: Factual innocence findings are clearly admissible before the compensation board. (See Cal. Penal Code § 851.8(i)(2).) But in order for such a determination to have any weight pursuant to collateral estoppel principles, it must be the product of a contested proceeding, as opposed to a stipulation between the parties. (See Tennison v. Calif. Victim Comp. & Gov't Clams Board, 152 Cal. App. 4th 1164 (2007).))

Furthermore, in the rare cases where the board does approve a claim, no money can actually be paid until the Legislature and the governor also sign off on it.

One important change to the law came in 2000 when the Legislature replaced a $10,000 cap on payments with the current $100-a-day rate. (See Cal. Penal Code § 4904.) Yet for many claimants, the most important developments have had less to do with the law than with the evolution of technology.

Consider the case of Robert Cuevas. In 2003, on the strength of videotaped images captured at the scene of the crime, Cuevas was sentenced to twelve years in prison for robbing a pharmacy at gunpoint. Five years into his confinement, however, new videotape-enhancing technology became available that clearly showed Cuevas had been mistakenly identified. A finding of factual innocence followed soon thereafter.

"The scary thing about a case like this is that it could happen to anyone," says Cuevas's attorney Ya-El Trock. "A mistaken identity case is difficult to prove. But he was lucky. He could have spent more time in prison."

In January 2011 the compensation board awarded Cuevas $162,700, but he had to wait another whole year to get the check. Trock says lengthy delays are not uncommon. "It's such a fragile process," she observes. "The AG can deny you. The claims board can deny you. The hearing officer can deny you, then the appropriations committee and the governor can deny you."

This fragility was underscored several years ago in the case of David Allen Jones, who experts testified had the mental capacity of an eight-year-old. After Jones spent eleven years behind bars for the murders of three women in Los Angeles, DNA evidence exonerated him. But Jones had also been convicted of rape in an unrelated incident. And so even after the compensation board approved his claim for $74,600 in 2007, when the recommendation landed in the Legislature, it met with stony silence. Ultimately Jones got a financial settlement from the city and county of Los Angeles, but he has yet to receive a dime from the state.

"I think we followed the law," says Jones's lawyer, Glen E. Tucker. "I think the attorney general followed the law and was a good adversary who became convinced that Jones deserved the money on the three homicide counts. But then the process was politically truncated. That's what happened."

After the compensation board rejected Timothy Atkins's claim, he took his legal battle to the Orange County Superior Court, where he hoped a judge would overturn the decision - or at least order the board to hold a new hearing. But on the day of the proceeding the writing was on the wall - or, rather, in the courtroom's entranceway, where next to the court's daily schedule a tentative order was posted denying Atkins's writ of mandate.

In the courtroom itself, the judge listened to short presentations from both the attorney general's office and Innocence Project attorney Alexander Simpson. Then the judge formally denied the petition, ruling that Atkins had "failed to demonstrate the board acted outside 'the manner of the law.' "

Atkins has appealed that ruling and at this writing awaits the outcome. But his lawyer Simpson acknowledges that it's an uphill fight.

Meanwhile, Atkins remains undeterred. "I'm never going to quit fighting," he vows. "I mean, I lost 23 years of my life for something I didn't do. I didn't give up while I was in prison. And I am most definitely not going to give up now."

Victor Merina is a Southern California freelance writer.

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