“Criminal cases are increasingly science dependent, and the traditional forensic sciences have played a crucial role in the way we dispense justice. Recent years have shown, however, that forensic science is no silver bullet. A weak scientific foundation, sparse research support, and surprisingly high error rates beset most forensic sciences.”
Keith Findley says many proposals to make forensic science evidence more reliable require action at the national level, but some are amenable to state action. Photos: Andy Manis
Feb. 3, 2016 – Wisconsin, through a bill with bipartisan support, may provide much more compensation to persons who serve prison time for crimes they did not commit.
Assembly Bill 460 (AB 460) would provide up to $50,000 for every year an innocent person sits in prison, capped at a maximum of $1 million. The Wisconsin Claims Board would reconsider the annual compensation rate every five years.
The proposed compensation increase aligns with the federal compensation rate and would be nontaxable.
Currently, wrongly convicted individuals who serve time in Wisconsin can receive up to $5,000 per year, capped at $25,000. Of the approximately 30 states with similar compensation statutes, Wisconsin's rate is the lowest, according to lawmakers who support the bill.
Reps. Dale Kooyenga (R-Brookfield) and Gary Hebl (D-Sun Prairie), and Sens. Van Wanggaard (R-Racine) and Fred Risser (D-Madison) were the lead authors of the proposal, AB 460 and companion bill SB 322. They note that Texas, for example, gives wrongfully convicted persons $80,000 for every year served in prison.
In Wisconsin currently, a person who is wrongfully convicted and serves 20 years in prison could not receive more than $25,000 in total compensation from the state. There is a mechanism to provide more compensation through a private bill, which must go through a legislative process.
But Keith Findley, assistant professor at U.W. Law School and co-director of the law school’s Wisconsin Innocence Project (WIP), says a systemic change is needed.
“The current compensation amount is way out of step with national norms,” said Findley, whose work at the WIP has helped free 20 individuals who were wrongfully convicted in Wisconsin since 1998. “The political process of a private bill is not the best way of compensating people who are wrongfully convicted and lose years of their lives.”
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
At a hearing in December 2015 before the Assembly Committee on State Affairs and Government Operations, Findley appeared on behalf of the State Bar of Wisconsin's Criminal Law Section, which supports AB 460 (and SB 322).
The committee unanimously passed the AB 460, with some amendments. SB 322 also unanimously passed the Senate's Committee on Judiciary and Public Safety. At press time, the bills had not been scheduled for full votes, but passage with bipartisan support is likely.
The new compensation rate would affect persons who were released on or after Jan. 1, 1990, and would be offset by civil awards an individual may have received as a result of wrongful conviction.
According to Findley, nine individuals would technically be entitled to seek additional compensation if the bill passed today, amounting to $2.73 million if all applied and met all eligibility requirements.
Bill Also Provides Health Insurance, Immediate Assistance, New Process
Importantly, Findley says, the bill also addresses the immediate needs that individuals have when they are released from prison and attempt to transition from life behind bars.
AB 460 allows exonerated individuals to participate in the same health insurance plan as state employees for up to 10 years, paying premiums at the same rate as state employees. Coverage would end if the eligible individual obtained access to health insurance through an employer.
In addition, if a trial court orders a person released from prison on grounds consistent with the person’s innocence, the court must order temporary financial and transition assistance to freed individuals, in order to bridge the gap while claims are processed. A final compensation award would be offset by the immediate funds received. The court must also order that court records related to the wrongful conviction be sealed.
Want to Learn More About Forensic Science and How to Use It, or Challenge It?
Check out Keith Findley’s one-hour presentation, Forensic Science: Fact or Fallacy, a State Bar of Wisconsin PINNACLE® program. This seminar will be webcast on Feb. 9, Feb. 18, and Feb. 26, from noon to 1 p.m. Register now.
The bill also changes the procedures for making compensation claims and allows the heirs of a wrongfully convicted person who dies to file a compensation claim on the exoneree's behalf. However, no exoneree who commits a related or subsequent felony can receive compensation for a wrongful conviction.
Currently, petitioners file a claim for compensation with the state claims board, a five-member board with representatives from the Department of Justice, the Department of Administration, the Governor’s Office, and the State Senate and Assembly.
The board must find innocence based on clear and convincing evidence. The board must also find that the petitioner did not by his or her act or failure to act contribute to bring about the conviction and imprisonment. Findley says this can be a high hurdle to overcome.
AB 460 moves compensation claims to the Division of Hearings and Appeals within the Department of Administration, where an administrative law judge (ALJ) will decide the case.
The ALJ will decide whether the petitioner is innocent by a preponderance of the evidence, the typical standard in civil cases, without regard to whether petitioner’s act or failure to act contributed to the wrongful conviction.
“It’s a matter that has been neglected for years and now the Legislature, to its credit, is taking it up and saying that we need to bring this up-to-date,” Findley said.
“This is a bipartisan and nonpolitical issue. Nobody wants innocent people in prison, and no one wants to punish people who didn’t do anything wrong. When the criminal justice system does make mistakes, everyone recognizes that the injustice needs to be remedied in some way.”
DNA Analysis Won’t Solve All Problems
Although more compensation, health insurance, and temporary assistance can help exonerees who have lost liberties and perhaps years of financial savings, income, career opportunities, and freedom from emotional distress, Findley says the compensation remedy is a backward-looking solution.
He said moving forward, he hopes Wisconsin will continue to explore the reforms and solutions that can prevent wrongful convictions from happening in the first place.
“Reforming the ‘Science’ in Forensic Science,” Wisconsin Lawyer, November 2015
The problem of shaky or flawed forensic science evidence is about much more than wrongful conviction of the innocent. It also means that the system fails to identify the truly guilty. Criminal cases are increasingly science-dependent, and the traditional forensic sciences have played a critical role in the way we dispense justice. To make forensic science evidence more reliable, a wide range of reforms must take place, says Keith Findley.
Advances in DNA testing since the 1990s have allowed law enforcement to exclude innocent persons as suspects, but Findley notes that DNA is not present in most crimes. Other contributing factors, such as eyewitness misidentification or false confessions, can also lead to wrongful convictions.
“We hope that with every advance in our ability to get reliable evidence, we reduce the rate of wrongful convictions. But that’s really going to be at the margins,” Findley said. "As wonderful as DNA evidence is, it is only present in a small minority of all criminal cases.”
According to the National Registry of Exonerations, the State of Wisconsin has exonerated 43 people since 1989. Of those, 12 cases involved DNA evidence to help prove someone's innocence, including Robert Lee Stinson.
Stinson, sentenced to life in prison for murder at age 20 in 1985, was exonerated in 2009 after serving 24 years in prison. DNA testing excluded Stinson as the source of DNA found on the victim. He was convicted based on what turned out to be improper bite mark testimony from forensic odontologists who said his indentations matched.
Nationally, state and federal courts have exonerated 1,733 individuals since 1989. But only 24 percent of those individuals were exonerated with the help of DNA evidence.
Thus, Findley says more work can be done to prevent wrongful convictions from happening in the first place, because DNA is not present in most cases. In addition, he says, the DNA testing process is not without its faults. Mistakes still happen.
“DNA is important, but it’s not a panacea,” he said. “It doesn’t solve all of our problems. We’ll need to fix the system in other regards and remain vigilant for wrongful convictions, even in the DNA era.”
For instance, continued reforms in the area of eyewitness misidentification, improper forensics, false confessions, and convictions based on informants may help mitigate wrongful convictions, Findley said. Findley says Wisconsin, in the past, has taken steps to address reforms in these areas.
Wisconsin Could Do More
In 2005, for instance, the state legislature passed a law requiring every law enforcement agency in the state to adopt written policies and procedures on eyewitness identification to minimize eyewitness errors for photo and in-person line-ups.
“That legislation did not mandate any particular procedures, leaving that up to local law enforcement agencies, but it made them think about it and issue policies,” Findley said.
The provision was one of numerous reforms under 2005 Wisconsin Act 60, known as the "Criminal Justice Reforms Bill." Interestingly, the bill was orginally named the "Avery Bill," after Steven Avery.
Avery was wrongfully convicted of rape in 1985, based on mistaken eyewitness identification. He was exonerated and released in 2003, based on DNA samples, after serving 18 years in prison.
While the Avery Bill was pending in 2005, however, Avery was charged and later convicted of murdering a woman named Teresa Halbach. The Avery saga is the subject of a Netflix docuseries, Making a Murderer, which has captured national attention in recent months.
The 2005 Criminal Justice Reforms Bill also required audio or video recordings of custodial interrogations of persons suspected of committing felonies.
“That was a really good step to help address the problem with false confessions, but police in Wisconsin are still free to use very coercive and suggestive interrogation tactics, including the use of deceit, and a presumptive process that is known to induce false confessions. Those methods haven’t changed,” Findley said.
Findley says the most glaring problem is in the area of forensic science. He recently wrote an in-depth Wisconsin Lawyer article, “Reforming the ‘Science’ in Forensic Science,” addressing some of the inadequacies and potential reforms.
"Forensic science, it turns out, is one of the leading causes of wrongful convictions,” he said. “According to the National Academy of Sciences, the preeminent scientific authority, most of the forensic sciences are not well grounded in science.
“We don’t really know how reliable they are,” Findley said. “And we have done almost nothing here to try to regulate forensic sciences and ensure that forensic analysts are shielded from influences that can taint or bias their interpretations of ambiguous data.
“So we really have a lot of work that we need to do on that. We also know from the study of wrongful convictions that the use of jail house informants is really risky, and we’ve done nothing to regulate or eliminate the use of jailhouse informants at all."
Findley said other states have created “forensic science commissions” to address these issues, and the U.S. Department of Justice and the National Institute of Standards and Technology have created a national commission on forensic science.
Findley noted that last year, the FBI reported that FBI analysts’ testimony on microscopic hair comparisons prior to 2000 contained erroneous statements or lab results in some 90 percent of cases in which microscopic hair comparisons were used.
“They testified in ways that were scientifically unsupportable,” Findley noted. “They say they are reopening and reexamining all those cases. They have urged individual states to do the same. Some states have started doing that. Wisconsin has not yet.”