Determining Eligibility for Compensation for Wrongful Conviction and Incarceration
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The Tim Cole Act (TCA) was named after Timothy Cole, a former Texas Tech student who was wrongfully convicted in 1986 of rape in Lubbock, Texas. He was sentenced to 25 years in prison, died in prison in 1999, posthumously exonerated in 2009, and granted the State’s first posthumous pardon by Gov. Rick Perry in 2010. The TCA, formerly known as the Texas Wrongful Imprisonment Act, was enacted in 2009, some seven months after Cole’s exoneration. It is hoped to be one of the nation’s premier pieces of legislation compensating individuals wrongfully imprisoned. Under the act, a wrongfully imprisoned person is entitled to compensation if the person 1) has served in whole or in part a sentence in prison under the laws of Texas, and 2) has been granted habeas relief on a court determination that he is “actually innocent” of the crime for which he was imprisoned.
The U.S. Supreme Court has purposely left open the question of whether a “freestanding” claim of “actual innocence” by a state prisoner is a “cognizable issue” under the Federal habeas corpus statute, 18 U.S.C. Sec. 2254. It is a question the Court has wrestled with since 1993 when it handed down its first decision on the issue in a Texas death penalty case, Herrera v. Collins, and again in its latest foray into the thorny thicket of the issue in 2009 in District Attorney’s Office v. Osborne [“Osborne also obliquely relies on an asserted federal constitutional right to be released upon proof of ‘actual innocence.’ Whether such a federal right exists is an open question.’].
The uncertainty of the “actual innocence” issue lies in the way Herrera was decided. The death row inmate presented a freestanding actual innocence claim in a second round of Federal habeas proceedings. The Supreme Court, through Justice O’Connor, in a concurring opinion, made a factual finding upon which all the justices agreed: “[Herrera] is not innocent, in any sense of the word.” The majority opinion put it this way: “[Herrera’s] showing of innocence falls far short of that which would have be made in order to trigger the sort of constitutional claim (actual innocence) which we have to assumed, arguendo, to exist.”
In effect, the Court left undecided the cognizability of a freestanding “actual innocence” claim, although the court left a perception that such a claim could be cognizable. Three justices explicitly recognized the claim, two did not, and the remaining four did not express an opinion on the issue. The fact that a majority of the justices expressed the belief that the execution of an innocent man would violate the Constitution adds fuel to the perception that under certain extraordinary circumstances a freestanding actual innocence claim could be raised in a Federal habeas proceeding. But for whatever reason the Court did not specifically make this finding in any real sense of the word.
The Supreme Court is a stiff, narrow, rigid institution. We suspect the Court wanted to confine Federal habeas proceedings to the traditional purpose of deciding whether a recognized constitutional right has been violated in a state court proceeding. Put simply, the Court did not want to be put in the position of having to assess guilt/innocence based on newly discovered evidence. Expressed another way, the Court essentially assumed the position that so long as the state proceeding was fair and constitutional, the issue of whether an innocent individual was convicted in that fair and constitutional proceeding was of no concern to the Court. This conclusion is somewhat supported by the fact in two subsequent Herrera-type cases—Schlup v. Delo in 1995 and House v. Bell in 2005—the Court once again ducked the opportunity to address the freestanding actual innocence issue.
It should be noted, however, that in Schlup the Supreme Court said that a claim of actual innocence requires not only a “showing that a reasonable doubt exists in the light of the new evidence [indicating innocence], but rather that no reasonable juror would have found the defendant guilty [had he known about the new evidence].” Put simply, a state prisoner raising a claim of innocence based on newly discovered evidence carries an extraordinary burden of demonstrating to a Federal district court that a specific constitutional violation renders his conviction a “miscarriage of justice” and that no reasonable jury would have found him guilty had it had it not been for that violation. In effect, the actual innocence claim had to be tied to a specific constitutional violation extreme enough to be a “miscarriage of justice”—a burden virtually impossible to prove.
And it must also be pointed out that two months after the Court decided Osborne, which left the freestanding actual innocence question open, the court handed down a decision in the case of Troy Davis , a high profile Georgia death row inmate executed last year, which said Davis should have an opportunity in a Federal habeas proceeding to “’satisfy the threshold showing for a truly persuasive demonstration of actual innocence.’” While the majority disparaged Justice Scalia’s dissent that an “actual innocence” claim is not cognizable in Federal habeas proceedings, even if a state prisoner’s innocence is established beyond any doubt, they nonetheless danced around the issue, saying through Justice Ginsburg that the Davis case was “exceptional” and the execution of an innocent man is not acceptable.
In essence, the Supreme Court said that in “exceptional” death penalty cases in which the inmate’s guilt is seriously called into question, he is entitled to a Federal habeas review of his freestanding actual innocence claim; and if he carries the burden of showing his actual innocence, separate and independent of any constitutional violation, then his execution cannot be constitutionally carried out. Left open is the gnawing question of whether a non-death penalty inmate—say, one serving a life sentence—could ever present an “exceptional” case warranting a Federal habeas review of his actual innocence claim.
It was against this muddled constitutional backdrop that the Texas Supreme Court significantly changed the “actual innocence” debate this past May in In Re Billy Fredrick Allen. Allen was arrested for two murders in 1983 by Dallas County authorities. He was subsequently convicted and was sentenced to two concurrent 99-year terms. His convictions were upheld on direct appeal. Over the next quarter century Allen filed several writs of habeas corpus in state courts alleging constitutional violations and claims of actual innocence—the latter claim having been recognized as cognizable in post-conviction habeas corpus proceedings in 1996 in Ex parte Elizondo. In 2009 the Texas Court of Criminal Appeals (CCA) found that Allen’s “newly discovered evidence” demonstrated a sufficient showing of “actual innocence” under Schlup v. Delo to warrant the issuance of a writ of habeas corpus and a release from custody.
In 2002 the CCA in Ex parte Franklin had placed “actual innocence” claims in two categories: Herrera-type claim, a “bare claim of innocence” based on newly discovered evidence like DNA testing which completely exonerates a habeas applicant; and a Schlup-type claim, an innocence claim which, standing alone, does not provide a basis for relief but when intertwined with a constitutional error, a criminal conviction is constitutionally invalid. The net result of the CCA’s interpretation of actual innocence is that a state prisoner raising a Herrera-type claim bears a much heavier burden because a constitutionally error free trial must be accorded the “utmost respect” whereas a state prisoner raising a Schlup-type bears a lesser burden of showing he is “probably” innocent and, absent the constitutional violation, he would not have been found guilty.
In 1955, Texas voters passed a constitutional amendment granting the Legislature the authority to grant compensation to persons sent to prison for crimes they did not commit. In the wake of the Herrera and Schlup decisions, the CCA took the lead in Elizondo by holding that “the incarceration of an innocent person is as much a violation of the Due Process Clause as the execution of such a person.” Thus, both Herrera-type and Schlup-type defendants wrongfully imprisoned are entitled to compensation. This position was given legislative approval in 2001 when the Legislature, in the wake of Herrera/Schlup/Elizondo, amended what was then the Texas Wrongful Imprisonment Act and today bears the name of Timothy Cole to accommodate this trilogy of case. However, the Legislature, like the Supreme Court, did not define the term “actual innocence” when it amended the TCA.
This created some uncertainty around Schlup-type cases seeking compensation for wrongful imprisonment. Under the TCA, the Texas Comptroller of Public Accounts determines both the eligibility and the amount a wrongfully imprisoned person is entitled to. This was made evident when Billy Allen applied to the Comptroller for compensation. As required by the Act, Allen supported his application with verified copies of the CCA opinion, the mandate issued by the CCA, verification from the Texas Department of Criminal Justice as to the length of his imprisonment, copy of his birth certificate, copy of his divorce decree, the birth certificate of his child, and a copy of State v. Young (a First District Court of Appeals decision that limits the TCA exclusively to persons who are declared actually innocent in a habeas corpus proceeding as was the case with Allen). In a bizarre twist of legal logic, the Comptroller denied Allen’s application saying he did not meet the “actual innocence standard” under the TCA.
This forced the Texas Supreme Court to address twin issues under the meaning of the TCA: 1) whether a grant of habeas relief on a Schlup-type claim merits compensation under the TCA based on a court finding of actual innocence, and if so, whether the Court of Criminal Appeals’ decision clearly indicated on its face that the writ was based on a court finding or determination of actual innocence.
In arguments before the Supreme Court, the Comptroller asserted that, as a matter of public policy, the State of Texas should compensate only those “persons who were wrongfully imprisoned and subsequently found not guilty of the crime for which they served time.” While the Court recognized that this was a “plausible theory”—the theory that the State should only compensate Herrera-type actual innocence cases (DNA exonerations, as an example)—the Court pointed out that the Legislature has drawn no distinction between the Herrera-type and Schlup-type claims, and, thus both are entitled to compensation. The Court added:
“We acknowledge that there are potential problems in the TCA—such as compensating someone now who later could be retried and found guilty, that may result in compensating someone temporarily who is actually guilty of the crime. The TCA addresses this concern to a degree by terminating compensation payments if the person is convicted of a crime punishable as a felony … Still, while unlikely, it is conceivable that the state could compensate someone who is later found guilty of the crime. Just as someone could be imprisoned for a crime he did not commit, the state could erroneously compensate someone who committed the crime for which he was incarcerated. The imperfection of humanity means that the state may make mistakes, but that possibility does not vitiate the government’s interest in avoiding injustice.
“Here, it appears unlikely that Allen will be retried or found guilty. In granting habeas relief to Allen, the Court of Criminal Appeals also ‘remand[ed] him to the custody of the Sheriff of Dallas County.’ Since the Court of Criminal Appeals granted habeas relief and Allen filed his application with the Comptroller, the 195th Judicial District Court of Dallas County, in which this case had been tried, dismissed all pending criminal charges against Allen. The District Attorney of Dallas County filed a Motion to Dismiss the charges based on the destruction in 2007 of all physical evidence, the death of one fact witness, the failing memory of other fact witnesses and the death of yet other surviving witnesses. The District Attorney concluded that these circumstances ‘render the State unable to prosecute the Defendant for the offense at this time.’”
The Texas Supreme Court explicitly held that it is not the function of the judicial branch to “second-guess” the Legislature about “important policy issues,” thereby implicitly telling the Comptroller that she did not have the authority to either define or enforce public policy issues. The Comptroller’s job is the follow the law, period—not try to create law.
The Court’s finding that Schlup-type claims enjoy equal standing for compensation as Herrera-type claims is important because it means criminal convictions reversed on habeas corpus based on prosecutorial misconduct (such as knowing use of perjured testimony) or the deliberate use of tampered with forensic evidence allows the defendant to be compensated for his wrongful imprisonment provided he demonstrates that, absence of the misconduct/false evidence, he would not have been convicted by a reasonable jury.
This should give unscrupulous, rogue prosecutors something to contemplate when deciding whether to conceal favorable evidence tending to show actual innocence or falsify (or manufacture) evidence to secure a guilty verdict.
NOTE: For an excellent review and analysis of the “actual innocence” issue, see In Re Davis, 2010 U.S. Dist. LEXIS 87340 (S.D. Ga. Aug. 24, 2010). This district court decision, based upon an exhaustive habeas hearing and an in-depth analysis of the actual innocence issue, found that Troy Davis had not established his actual innocence by “clear and convincing” evidence. Davis was executed in the evening hours of September 21, 2011 with hundreds of thousand supporters fervently convinced of his innocence.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization