Wrongly convicted, they had to choose: Freedom or restitution

Outside of Jimmy Dennis’ house, on a quiet block, it was one of those perfect summer days. But Dennis preferred to stay inside, behind drawn shades, where there was little risk anyone would misinterpret what he was up to.

Twenty-five years on death row can do that to a man.

Since being arrested for a 1991 killing in Philadelphia, Dennis has maintained his alibi — that he was on a bus — and his innocence. But not until 2016 did a federal appeals court tell the state to start a new trial or release Dennis.

Neither happened. Instead, prosecutors offered Dennis a deal: sign a plea saying he was guilty of third-degree murder and he could leave prison instantly. If he declined, a new trial would most likely take years.

The deal gave the city an out. Without an affirmative finding that he was innocent, Dennis would not be able to bring a civil suit seeking payment for his years in prison.

“The whole thing was they didn’t want me to sue,” Dennis said. “That’s what it all comes down to.”

Dennis’ deal is one of several nationally that federal judges are taking a close look at, weighing their fairness and whether they stand up under legal precedent. The deals suggest an emerging strategy in potentially costly wrongful conviction cases: Set people free, but pay them nothing.

Governments are fielding huge bills as the number of overturned convictions mounts. Since 1989, municipalities have paid $2.5 billion to exonerees, who can seek money under compensation statutes in more than 30 states or via lawsuits, according to research from Jeffrey S Gutman, a law professor at George Washington University.

Some jurisdictions are having trouble paying. Michigan this year had to pass legislation to replenish its wrongful conviction claim funds after it almost ran out of money, while tiny Gage County, Nebraska, which has been ordered to pay $28 million to six exonerees, has considered raising property taxes and declaring bankruptcy.

To bring a civil rights claim, defendants must have a favourable termination of their criminal case, according to the Supreme Court’s ruling in the 1994 decision Heck v Humphrey.

In the prevailing interpretation of that ruling, favourable termination means an affirmative finding of innocence. But such findings are rare. If a conviction is vacated, the defendant is typically granted a new trial rather than declared innocent outright.

Prosecutors may then retry the case, or they may drop it — either because so much time has passed that the case would be too difficult to retry, or as a de facto acknowledgment that the person probably did not commit the crime. Or, as in Dennis’ case, they may strike a deal requiring the defendant to forgo seeking civil damages.

Some prosecutors say these types of offers are inherently coercive when the alternative is staying in prison.

“It flies in the face of our most basic concepts of an accurate and just system: Simply put, I think the whole thing is despicable,” Larry Krasner, Philadelphia’s district attorney and a former defence lawyer, said when asked to comment on Dennis’ case and another similar deal arranged by his predecessor.

When Dennis was offered the deal, his mother was sick and his father had already died. His daughters, one born after he was jailed, were in their 20s.

“When your mother doesn’t ask you for anything your entire life and she says, ‘You’ve proven your innocence, and what else do you need to prove?’” He trailed off, his voice cracking.

“To this day, sometimes I hate the fact that I let these people off the hook,” he said.

Out for Christmas

In a 1997 Alaska case, four defendants — all Native Americans or Alaska Natives — were convicted of the murder of a white 15-year-old named John Hartman. As problems with the case against them came to light, supporters began to call them the Fairbanks Four.

At a hearing in 2015, the four presented exculpatory evidence — including some that pointed to lapses by law enforcement. Prosecutors began shaping a deal that would free the men if they agreed not to pursue a lawsuit.

But there was a hitch: One defendant, Marvin Roberts, had received a lighter sentence and was already out on parole. He would not have to choose between incarceration and taking the deal.

One former prosecutor wrote in an email that Roberts “may be convinced if it means the release of the other three.” Otherwise, he warned, the state could “face exposure of tens of millions of dollars.”

Alaska’s attorney general’s office formalised its offer, agreeing to drop charges and release the remaining three men if they relinquished any claim of wrongdoing by the police or the state. If any of the four refused to sign, the deal was off.

“In the end, for going through what I went through, I would not get any compensation whatsoever,” Roberts said. “I spent over 18 years in hell, in a nightmare.”

He had already experienced the financial impact of so many years in prison: Though he had been a high school valedictorian, the only job he could initially get was property maintenance, with duties like shovelling snow.

“But my three friends, my brothers, they were still in jail,” he said. “So I was going to be out for Christmas and they weren’t — if I didn’t make the deal.” He signed.

Alaska’s former attorney general, Craig Richards, who approved the settlement, declined requests for comment, as did the current attorney general.

In 2017, the four men filed a lawsuit citing police misconduct and civil rights violations in the original case. They argued that the prosecutors’ dismissal of the charges counted as favourable termination.

Last year a federal judge ruled against them on the grounds that the signed agreements specifically said the parties had not reached an agreement on guilt or innocence. The four are appealing.

“Once there’s compelling evidence that there’s serious misconduct in obtaining the conviction, why should prosecutors have the power to stop a civil rights suit?” said Anna Benvenutti Hoffmann, a lawyer for two of the men. Among other things, officials had failed to disclose inconsistent statements by a key witness.

It can be difficult to understand why a person would sign away the right to sue, even if doing so means freedom. At one hearing, Sean Kelly, a brother of the victim, said the bargain underscored his belief that the four were guilty.

If they were innocent, he asked, “would they accept a deal that basically gives them nothing?”

‘You Are Going to Bankrupt the City’

Shaurn Thomas walked out of prison in 2017. Philadelphia’s conviction integrity unit, a division of its district attorney’s office that reexamined old cases, had vacated his decades-old murder conviction, deciding there was evidence that could have shown that Thomas was not guilty.

But at the time, the city was being sued by another exonerated man, who would ultimately win a record $10 million. His name was Anthony Wright.

“Would be nice to avoid a second Anthony Wright-type case and get a nolo contendere” — a plea of no contest — a city lawyer wrote to a colleague.

But Thomas refused to sign a deal saying he would not pursue a lawsuit. “You are going to bankrupt the city,” the acting district attorney told one of Thomas’ lawyers, according to a court filing.

In the end, prosecutors used a “nolle prosequi” — translation: “to be unwilling to pursue” — to dismiss the charges. The city argues that a nolle prosequi does not count as a favourable termination.

A wrongful conviction does not necessarily mean the defendant’s rights were violated. A conviction can be vacated for many reasons, including exculpatory DNA evidence, prosecutorial misconduct, errors during the trial, new witnesses, new evidence or, as in Thomas’ case, a prosecutorial review.

If there is no evidence the police or prosecutors acted improperly, the defendant cannot sue.

The considerations for overturning a conviction and for determining a city’s civil liability are different, Mike Dunn, a spokesman for the city of Philadelphia, wrote in an email: “They are not interchangeable. Thus, it is incumbent upon us to consider and avail the city of all available defences.”

Thomas argues that there were civil rights violations against him. The Philadelphia police pressured a participant in the crime to name Thomas, he said in a federal lawsuit, and ignored evidence that he was at a youth study centre at the time of the crime.

In August, Judge Gene EK Pratter of US District Court decided the suit could go forward. The city’s “nol pros decision is indicative of the plaintiff’s innocence” and indicates “favourable termination,” she wrote.

In another case, in Pima County, Arizona, Louis Taylor was a teenager when he was arrested near a Tucson hotel in 1970 after it caught fire. He was convicted of 28 arson-related counts of murder, but decades later, after advances in fire investigation techniques showed that cases may have been misclassified as arson, Taylor’s lawyers pushed for a new trial.

Instead, prosecutors offered Taylor, now in his 60s, a “no contest” plea to lesser charges and time served, which he took.

A federal appeals court decided this year that Taylor could not sue for damages, but one judge dissented. “He was convicted on the basis of little more than that proximity and trial evidence that ‘black boys’ like to set fires,” Judge Mary M. Schroeder wrote. She found it troubling that “his plea agreement somehow validates or justifies the original sentence that deprived Taylor of a meaningful life.”

A Document in a Pocket

“See how gorgeous he is?” said Corby Johnson, Jimmy Dennis’ fiancée, showing pictures of Dennis just after they first met as children, at an elite choir for Philadelphia public school students.

When a teenage girl was shot and killed in 1991 near a transit stop, Dennis was miles away on a bus en route to singing practice, he said.

After decades of appeals, a judge found that prosecutors had suppressed statements and evidence that backed up Dennis’ alibi and pointed to another perpetrator. Dennis “was wrongly convicted of murder and sentenced to die for a crime in all probability he did not commit,” the federal judge, Anita B. Brody, wrote in a 2013 decision. Dennis still carries his copy of it, worn and water-stained, almost all the time.

Life has resumed some regular rhythms since he has left prison. He moved in with Johnson; he has been writing and recording songs.

But he is not normal, and he knows that. He keeps his phone locator on at all times so Johnson can track him. He panics if she so much as double parks, worried it will attract the police. When he travels, he insists on hotels lined with cameras. “What was taken away from me so easily could easily be taken away from me again,” he said.

He has nightmares about his trial, with the judge and police officers looming cartoonishly above him.

“This side of the bed is dry but my side of the bed— ” he said.

“Soaking wet,” Johnson finished.

In May, Dennis got some good news. A federal judge, Eduardo C Robreno, had found a novel way to let his lawsuit against Philadelphia proceed even though he had entered the plea deal in 2016.

Robreno determined that the deal was the second of two separate convictions, and said that Dennis was entitled to sue based on the first one, which had been declared invalid by a federal judge.

If Robreno’s decision is upheld by higher courts, it could present a new way forward for the wrongfully convicted.

Dennis, for now, is trying to figure out each day.

“I’m sitting here a semblance, trying to get back to me,” he said.

He rose to shake hands and then stopped at the threshold of his house, not willing, for now, to go any further.

© 2019 New York Times News Service