State claims Commissioner J. Paul Vance Jr. and his role as the sole authority over how Connecticut reimburses the wrongly incarcerated face a review at the State Capitol after his award of $16.8 million last month to four former members of a New Haven street gang, the Island Brothers.
Connecticut’s short history of trying to compensate the wrongfully convicted and incarcerated had been easy: The two previous recipients of multi-million dollar awards, James Tillman and Kenneth Ireland, were shown to be undisputedly innocent by DNA evidence later used to convict other men.
But the case of the Island Brothers – Carlos Ashe, Darcus Henry, Sean Adams and Johnny Johnson, convicted in an ambush of rival gang members in 1996 that left one man dead and two wounded – present harder questions about what the state owes former convicts whose freedom comes from a finding of prosecutorial misconduct or other trial errors, not proof of actual innocence.
“The other ones were easy, but this one has the much more sinister side to it,” said Victor Sipos, a lawyer for the four men. “The presumption in the other cases is those men at least got a fair trial. In this case, the men did not get a fair trial.”
After years of appeals, the Connecticut Supreme Court ruled on July 23, 2013, in Adams’ appeal that a prosecutor’s repeated failure to correct the record and inform the jury that Andre Clark, a survivor of the shooting, was lying when he denied testifying against his accused attackers under a plea agreement that could keep him out of prison in another case.
Two days after the ruling, the New Haven state’s attorney, Michael Dearington, dismissed charges against all four men, saying new trials were impossible after the passage of 17 years and the absence of a key witness: Clark, who was shot to death in 2008. All four were released from custody, three of them still wearing orange prison jumpsuits.
“Justice finally prevailed,” said Adams, who was greeted by a daughter born after his arrest, according to an account by the New Haven Independent. “I don’t have time to feel bitter or hate. I’m just glad it’s over and done with.”
It’s not entirely over, at least not in Hartford.
The office of Attorney General George Jepsen says Vance misinterpreted a 2008 wrongful conviction law intended to provide compensation only in cases of exoneration when he awarded $4.2 million to each of the four men as compensation for serving up to 17 years in prison.
“That statute is clear. It does not provide compensation whenever any conviction is reversed,” said Perry Zinn-Rowthorn, the deputy attorney general. “A person is eligible for compensation only if he demonstrates that he was convicted and imprisoned for a crime of which he was innocent and that the conviction was vacated or reversed on grounds of innocence or consistent with innocence.”
Chief State’s Attorney Kevin Kane said the applicants for compensation “clearly have the burden of establishing innocence or that their case was dismissed on grounds of innocence or consistent with innocence.”
And some legislators have second thoughts about a system in which the decisions of a claims commissioner are not subject to review or appeal. An irony of claims law is that Vance has exclusive authority over two types of claims against the state: awards of $20,000 or less, and wrongful incarceration cases, which can yield multi-million dollar damages. Everything in between is subject to legislative review or a trial in Superior Court.
Without commenting on the appropriateness of Vance’s decision, Rep. William Tong, D-Stamford, co-chair of the Judiciary Committee, said he expects the law to be reviewed this session with an eye toward creating a venue for the state to appeal.
Senate Minority Leader Len Fasano, R-North Haven, who has been in contact with the murder victim’s family, said Vance’s decision was an outrage.
“It is clear they need to be found innocent for damages. I think Paul Vance is absolutely wrong. I think he has no justification for it legally,” said Fasano, a lawyer whose district abuts New Haven. “I think what we should do in the event we have a claims commissioner who apparently has misread the statute, we should allow an appeals procedure.”
Fasano said Vance’s competence already has come under question over missed deadlines for acting on claims. The attorney general’s office said in November there were at least 80 cases in which Vance failed to act within a two-year statutory deadline for awarding or rejecting damages or giving claimants the right to sue the state.
Vance, a gubernatorial appointee up for reappointment to another four-year term, declined to comment on the criticism, other than saying he has “a great deal of respect for Sen. Fasano” and the legislature has the right change the law.
The application for damages by the four men was a contested proceeding before Vance. The attorney general’s office argued in writing the four men did not meet the criteria for compensation because the order for a new trial did not conclude they were innocent.
“Here, there is absolutely no evidence as yet in the record to show that these claimants are innocent,” wrote Assistant Attorney General Terrence M. O’Neill, whose office readily concedes the men deserved a new trial. “While there can be no doubt that a significant prosecutorial error constituted a significant defect in their prosecutions, that defect does not, in and of itself, establish innocence.”
The Supreme Court offered no clearcut guidance on its thoughts of Adams’ innocence. It noted that the failure to correct the perjury may be immaterial in cases where the evidence of guilt was “overwhelming,” but that was not the case before the court. Justice Richard Palmer, a former prosecutor, wrote in a unanimous opinion that the state’s evidence for conviction was “certainly sufficient” for conviction, but “not particularly strong, let alone overwhelming.”
The jury in the first trial deliberated for 10 days before convicting Adams, but deadlocked on two of the other three defendants, who were convicted at a subsequent trial. Palmer concluded “the jury viewed the case as a relatively close one.”
Vance agreed that the men did not establish innocence, but he instead concluded that the charges against the men “were dismissed on grounds consistent with innocence,” also a justification for damages under the law. He awarded each man $2.4 million for loss of liberty, $1.1 million for loss of earnings and future earnings capacity, $200,000 for loss of reputation, $100,000 for physical and mental injuries and $200,000 for legal fees and expenses.
Sipos said Connecticut legislators were right not to draw the grounds for damages too narrowly, since not every wrongful conviction can be reversed so cleanly and definitively by DNA evidence.
“It’s wonderful when scientific advances can reveal wrongdoing in the past that results from a tragic mistake in a trial where everyone did their best,” he said. “In this case, it didn’t result from a tragic mistake. It resulted from prosecutors who violated their constitutional obligations year after year after year.”
Sipos said “consistent with innocence” and other similar phrases are found in wrongful conviction laws in other states, and damages have been awarded under circumstances not as strong as the ones in the claims by the Connecticut men.
He said the prosecutorial misconduct was egregious, although the appellate record leaves open the possibility the prosecutor was uninformed of Clark’s plea deal. Whatever the case, Clark, the strongest witness in the case, had told initially told police he could not identify his attackers.
“This was reasonable because during most of the incident Andre was running away from the scene or hiding behind a metal box and the shooters had been wearing ski masks,” Sipos told Vance in a brief, although court referred to them wearing hats, not masks. “Andre did not deviate from his statement for 27 months, more than two years.”
It was important for the jury to know that Andre lied when he testified he had no deal and that he came forward to testify only after he faced prison in an unrelated case, Sipos said.
Connecticut law grants absolute immunity to prosecutors, so the wrongful conviction law is the only means to recover damages for misconduct, a check on prosecutorial misconduct, he said.
Zinn-Rowthorn, the deputy attorney general, said the absolute immunity for prosectors is no reason for damages in this case.
“Prosecutorial misconduct is without question an issue of serious concern, but it does not qualify a claimant for compensation under the wrongful incarceration statute,” he said. In cases where a claimant is exonerated, evidence of prosecutorial misconduct can be a factor in calculating damages.
Three days before Vance’s decision, Sen. Gary Winfield, D-New Haven, published a piece online urging compensation for the men, saying the state should not shy away from a difficult question about the concepts of justice and innocence.
“The case of the four men in Connecticut who were wrongfully convicted and now seek compensation under the state’s wrongful conviction statute is one where we wrestle with what exactly justice is,” Winfield wrote. “For those who see the men’s side it is clear — give them the money. It is also clear to those who think they should not receive any compensation. Still there are those who think it is all a muddy mess.”
Winfield said he believed it was reasonable to conclude that standing convicted of no crime was consistent with innocence.
The office of Gov. Dannel P. Malloy, who must decide if Vance is reappointed, declined to comment when asked if the New Haven case will be a factor. Vance, meanwhile, faces a deadline of Feb. 8 to issue a decision on an award for the wrongful conviction of Miguel Roman, who served nearly 20 years in prison for the murder of his girlfriend.
In this one, the state concedes actual innocence. With DNA evidence, it has convicted another man for the crime.