Appeals Court Reverses Decision Denying Compensation for Wrongful
A Milwaukee man will get equitable compensation for time spent in jail
based on a conviction for prostitution that was not supported by any
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
May 23, 2012
– A Milwaukee man convicted of prostitution, and later exonerated,
will soon be compensated for the time he spent in jail, under a recent
decision by a state appeals court.
The state charged David Turnpaugh under
Wis. Stat. section 944.30(1),
which makes it a class A misdemeanor to offer or request sexual
intercourse in exchange for anything of value, claiming Turnpaugh violated this statute by
propositioning an undercover police officer.
The undercover cop testified that Turnpaugh told her
he was looking for sex and wanted to watch her engage in
self-pleasuring activity. A jury convicted him on the
But an appeals court reversed the conviction as a matter of law,
finding no evidence in the trial record to support the crime charged.
That is, the appeals court found no evidence to support the charge
that Turnpaugh solicited sexual intercourse for
Turnpaugh then filed a claim under Wis. Stat section 775.05,
which allows innocent persons who have been convicted of crimes to
obtain equitable compensation up to $5,000 per year of imprisonment, not
The Wisconsin Claims Board denied Turnpaugh’s
claim and the circuit court for Milwaukee County upheld the
board’s decision. But in Turnpaugh v. Wisconsin Claims Board,
2011AP2365 (May 22, 2012)(recommended for
publication), the District I appeals court reversed.
Under section 775.05(3),
the Claims Board must find “either that the evidence is clear and
convincing that the petitioner was innocent of the crime for which he or
she suffered imprisonment, or that the evidence is not clear and
convincing that he or she was innocent.”
The Claims Board found that Turnpaugh did not
present clear and convincing evidence that he was innocent, ignoring the
appeals court decision that found him innocent as a matter of law.
“The Claims Board’s finding to the contrary is
inexplicable,” wrote Judge Ralph Fine for the three-judge panel.
“[T]here was no evidence in support of his conviction,
and he was innocent as a matter of law.”
For his 60-day sentence, Turnpaugh spent
three days in jail and 57 days on electronic monitoring. But the Claims
Board also found that Turnpaugh was not
“imprisoned” as that term is used in the statute that grants
compensation to innocent persons who are imprisoned.
“Even giving the Claims Board the highest level of deference,
this conclusion flies in the face of the statute,” wrote Judge
Fine. Thus, the three-judge panel remanded the case to the Claims Board
for an assessment of Turnpaugh’s