Special Report: Wrongfully convicted inmates fight for compensation

Five men, accused of crimes they did not commit, talk about their convictions, time in prison and the process of seeking compensation.

By Molly Hennessy-Fiske

Dec. 20, 2014 4 AM PT

After Ricardo Aguilera took a bullet to the back of his head in a drive-by shooting, he recovered enough to tell police he had seen the gunman: a light-skinned Latino with a goatee, riding in a Dodge Ram pickup with a guy from the Ford Maravilla gang.

The police put together a photo lineup, and Aguilera pointed to a young man with a shaved head and facial hair. It was him, he said.

Deputies showed up at Rafael Madrigal’s door in Mira Loma, about 45 miles from the crime scene in East Los Angeles. Madrigal, who had never been in a gang, who hadn’t even lived in East L.A. for five years, was incredulous.

The photo in the lineup was at least eight years old, he said — snapped by a gang task force when he was a teenager. He had a house, a good job, two kids he coached in soccer. A time card indicated he’d been at work the day of the shooting in 2000, but the date stamp on the machine was broken, and the supervisor had written in the date by hand.

Investigators didn’t believe him, and neither did a jury.

Madrigal was sentenced to 53 years to life for attempted murder. It took three years before he found an attorney willing to appeal, three more years before they could convince a judge that Madrigal’s original attorney defended him ineffectively.

Madrigal walked out of Chino State Prison on Oct. 6, 2009, with the clothes on his back and $187. He was free to return to the life he’d left behind nine years earlier.

Except it didn’t exist.

Under a state law intended to compensate those wrongfully imprisoned for crimes they didn’t commit, Madrigal appeared to qualify for $281,700 from the state of California.

In the five years since his release, he has argued his case before a state hearing officer and a state compensation board. But though a federal judge found “compelling evidence” that he was “actually innocent,” Madrigal has been paid nothing.

The Los Angeles Times has documented dozens of cases nationwide in which people convicted and later cleared by DNA or new evidence never received state compensation. Some — especially the low-income minorities who make up a large share of the wrongfully imprisoned — never file a claim because they can’t afford a lawyer or find one willing to take the case.

“They just opened the door and said, ‘Hey, walk away!’” said Madrigal, 39. “I didn’t have much when I went in. But I had what I had, and that little bit that I did have was all taken from me.”

His house was gone, sold by his wife to avoid foreclosure. The daughter born shortly after he was imprisoned barely knew who he was. He got a job, but was soon fired when his employer learned he had spent time behind bars.

The number of people exonerated each year in the United States has nearly tripled over the last two decades, according to the National Registry of Exonerations, an academic database that tracks those declared innocent, pardoned, acquitted at retrial or released by a judge based on new evidence.

A total of 1,493 wrongfully convicted inmates have been set free since the first DNA tests in 1989. Hundreds of them have been ushered out of prison with no compensation, even in the states — a total of 30, plus the District of Columbia — that have passed laws providing for the payments. In fact, of those cleared by DNA evidence, only 57% received state compensation, according to the New York-based nonprofit Innocence Project.

“If someone gets paroled, they get ... food vouchers, clothing vouchers, benefits, even places to live. But for someone who gets exonerated, they just throw you on the street and don’t even give you an apology,” said Dwayne Provience, 41, who spent nearly a decade in prison before his murder conviction in Detroit was overturned in 2010. The city rejected his bid for compensation and then declared bankruptcy; Provience now works two jobs to support his four children.

Last year, Andrew “A.J.” Johnson, 65, was declared innocent of rape as a result of DNA evidence after serving 24 years in a Wyoming prison. That state offers no compensation, however, and today Johnson is nearly broke.

“A wrong was done, and they should at least help me get my life back together,” Johnson said.

California was among the first states to pass a compensation law in 1913, capping payments at $5,000. That amount was later raised to $10,000, and then to $100 per day spent in prison — with an annual maximum of $36,500.

A 2012 survey by a researcher at the State University of New York at Albany found that California pays less than many other states and provides fewer services.

Since 1981, the earliest year with records available, the three-member board that decides compensation claims in California has denied 59 and granted 22, awarding payments of about $6.2 million.

A decade ago, President George W. Bush signed the Innocence Protection Act, which guarantees those exonerated of federal crimes $50,000 for every year they spent in prison, $100,000 for each year on death row.

Only a handful of states meet or exceed that federal standard. Compensation payments range from $5,000 a year in prison in Wisconsin to $80,000 a year in Texas.

Those who resort to pleading their cases in legislatures and civil courts face stiff odds. In civil court, they must prove that police and prosecutors — generally protected by immunity laws — committed flagrant, intentional misconduct.

Exonerees and their advocates have lobbied to pass compensation bills in numerous states, but in recent years such efforts have failed in Alaska, Arizona, Georgia, Hawaii, Michigan, Pennsylvania and South Carolina.

In Washington state, though, one passed last year, with support from an unusual source: Seattle’s top prosecutor, a Republican.

“Money is the mechanism by which we apologize and express regrets in our legal system,” King County Prosecuting Atty. Dan Satterberg told lawmakers.

Satterberg had just dropped all charges against Brandon Redtailhawk Olebar, 31, a member of the Lummi tribe mistakenly prosecuted by his office for robbery a decade earlier.

The bill passed. Olebar received $496,712 — and, to his surprise, an apology and a hug from Satterberg.

After his release, Madrigal eventually found shift work managing logistics at a warehouse. But he still awoke at 3 a.m., as he had for his prison kitchen jobs. He struggled to reconnect with his children; his eldest, Andrew, was 6 years old when his father left for prison and was now a tall, college-bound wrestler.

“Me missing those years when a kid goes from junior high school to high school; that guidance that a boy needs from a father. He was mad at the situation,” Madrigal said one morning at his home in Ontario. “Why it happened to us.”

Making lunches at the kitchen counter as his children awoke, Madrigal faced a rosary draped over a sign that reminded him, “Always be grateful for the life you have.”

His wife, Veronica, 37, was preparing to drop the kids at bus stops and school on her way to work at her family’s used electrical equipment store. Andrew, who still lives at home, was heading out to community college. The family’s three English bulldogs barked outside.

To Andrew, his father’s conviction had been “terrifying.” The family had to move in first with one set of grandparents, then another. Each time, he switched schools.

“In high school, I just drowned myself in wrestling,” said Andrew, 20, now studying to become a high school biology teacher.

During those years, Andrew’s paternal grandfather looked after him, offering encouragement when his grades slipped.

“He knew I was a good student, but I had stages where I would just think about why was my life so difficult. We were struggling — I didn’t understand why we couldn’t have our own house,” Andrew said.

During his sophomore year, eight months before his father was released from prison, his grandfather died of a heart attack.

Now every few weeks, the family visits the cemetery in Whittier after church. Rafael Madrigal kneels on the grass to polish his father’s headstone portrait with baby wipes. He places bouquets just so and shares a can of Dos Equis, pouring it slowly onto the grave as Andrew looks on.

“Nobody can give me back those years, the time with my kids and my dad,” Madrigal said. “But the little you could give me, I could give my kids a better future.”

States that offer compensation face a challenge: separating the innocent from those released solely based on technicalities — for example, because a judge found a defect in the prosecution, or concluded that their lawyer did not represent them effectively, as in Madrigal’s case.

On appeal, Madrigal argued that there was significant evidence of his innocence.

When Madrigal found an attorney willing to take his case, one of the first things the lawyer had him do was take a polygraph test. He passed.

The lawyer next offered the court a variety of new evidence: testimony from Madrigal’s supervisor that he was at work at the time of the shooting; a jailhouse phone call in which the convicted driver of the truck used in the shooting, Francisco “Go-Go” Olivares, told his girlfriend that Madrigal wasn’t involved; forensics showing that the gun belonged to a Ford Maravilla gang member who matched the victim’s description of the shooter.

After three years of petitions and hearings, U.S. Magistrate Judge Marc Goldman found there was “compelling evidence” that Madrigal was “actually innocent.”

Madrigal could have been retried, but prosecutors decided against it, saying that, after many years, physical evidence was not available and that witnesses could not be located or could no longer remember what happened.

In July 2011, a federal judge dismissed all charges. Two months later, Madrigal filed for compensation.

Some states only compensate those cleared by DNA evidence. Others pay only those who had no prior criminal record or were cleared by a judge with a finding of “actual innocence” or “factual innocence.”

When Madrigal was released, California had an even tougher standard. Applicants had to prove that they were innocent and had not “contributed to their conviction” — for instance, by pleading guilty, running from police or belonging to a gang. In several cases, the California Victim Compensation and Government Claims board denied compensation to applicants who had been found factually innocent or exonerated by DNA, because the board decided they had contributed to their convictions.

At hearings in Sacramento last year, Madrigal and other advocates for the wrongfully convicted urged lawmakers to scuttle the provision barring compensation to those who contributed to their convictions. They also wanted to compel the state to compensate those found factually innocent, cleared by DNA or released when evidence pointed “unerringly to innocence,” a standard Madrigal was convinced would apply to him.

But they faced opposition from lawmakers, prosecutors and victims’ advocates who shared a concern voiced by counterparts in other states: that not all those seeking compensation are really innocent, and criminals might benefit.

“It’s really hard, the thought that we would actually be paying somebody who was gaming the system,” Sen. Joel Anderson (R-El Cajon) said as Madrigal looked on.

The bill’s sponsor, Sen. Mark Leno (D-San Francisco), said that was unlikely — and that those who were innocent deserved to receive their money more quickly.

“Many of them wait many, many years — if they get anything at all,” Leno said.

The legislation Madrigal and the others had sought was approved by an overwhelming majority and took effect in January — just as Madrigal was preparing for his hearing before the state compensation board.

Those seeking compensation in California for wrongful convictions have had to undergo a lengthy hearing process, first before a lawyer who has been designated as a hearing officer. The officer makes a recommendation to the state compensation board, which hears the case and makes a decision on whether to grant compensation. Denials can be appealed in court.

In order to receive compensation, claimants must prove their innocence by a “preponderance of evidence,” meaning it is more likely than not that they did not commit the crime.

Claimants are not entitled to court appointed-attorneys. They can testify and present witnesses but cannot compel them to appear.

The state attorney general’s office also can present evidence and often actively opposes compensation.

“In each case, we make a recommendation based on the facts and the statutory standard for compensation claims,” the attorney general’s office said in a statement. “Ultimately, however, the state compensation board is vested with the sole authority to grant or deny a compensation claim.”

David LaBahn, president of the Washington, D.C.-based Assn. of Prosecuting Attorneys, acknowledges that the process is rigorous but he defends it as necessary to ensure that only the innocent are compensated.

Even with the changes to the California compensation law, some still wage uphill battles to receive money for their time behind bars.

In 2010, the board refused to compensate Timothy Atkins, 47, a former gang member convicted of a 1985 murder and robbery in Venice. Atkins served 19 years before a key witness recanted and said police had forced her to snitch. A judge released him, but when Atkins applied for compensation, he got nowhere.

A state compensation board member, San Bernardino County Dist. Atty. Michael Ramos, dismissed Atkins’ witnesses as “uncredible, family and friends of a gang member.” He said state witnesses had been intimidated into recanting. Compensation was denied.

Atkins went back to court and this year persuaded a judge to find him “factually innocent.” The board is reconsidering his claim for $713,100. But the state attorney general’s office still opposes it, arguing the new law does not apply retroactively to Atkins and others awaiting compensation.

Even when the board does grant compensation, it must be approved by the Legislature, a requirement that can jeopardize or delay payment.

In 2007, for example, the board approved $74,600 in compensation for David Allen Jones, 47, a mentally disabled Los Angeles janitor whose murder convictions were overturned in 2004 when DNA evidence implicated another man, a serial killer, in what the district attorney called “a system failure.”

Some lawmakers, however, still questioned Jones’ innocence and the bill to pay him died on the Senate floor.

Nearly 10 years after he was sentenced, Madrigal got his chance to plead for compensation.

In a windowless Sacramento conference room, he addressed a hearing officer who would recommend whether the state compensation board should pay him for the 2,817 days he spent in prison.

“I had nothing to do with this crime,” Madrigal testified. “I was never there. I wasn’t involved in it one bit.”

The deputy attorney general sitting across from him disagreed. He questioned Madrigal’s alibi, his testimony, and the veracity of his defense witnesses.

“The evidence establishing his guilt was not refuted — that included three eyewitness identifications and a fairly strong showing that he did not in fact have a rock-solid alibi,” said Deputy Atty. Gen. Sean McCoy.

For Madrigal, it was like going on trial all over again — except hearing officers are not judges. Many are former government lawyers. Madrigal’s hearing officer had passed the bar four years earlier, after working as a staffer for the board.

It took six months for him to make his recommendation — that Madrigal had not established his innocence by a preponderance of the evidence, and the board should deny compensation.

Madrigal’s hearing before the board didn’t get underway until months later, in March.

He nervously claimed his seat in front.

Madrigal wore a gray sweater, knife-creased khakis and new black leather shoes, a gift from his wife. His boss had given him the day off.

The family needed money now more than ever. Madrigal’s eldest son had received scholarships to transfer from community college to a four-year school in Arkansas. Even with the promotion Madrigal would soon receive, the family couldn’t afford Andrew’s room and board without state compensation.

The three-member panel included a tax lawyer standing in for Controller John Chiang; Marybel Batjer, head of the Government Operations Agency that oversees state programs, and a gubernatorial appointee: Ramos, the San Bernardino district attorney, who has served on the board for a decade.

After the hearing opened, the deputy attorney general argued against compensation.

Batjer, who is not a lawyer, flipped through the case file before asking the first question: Could Madrigal have clocked in to his job that day and slipped out?

No, said Madrigal’s attorney, Alex Simpson. He cited testimony from Madrigal’s supervisor, who had pointed out that Madrigal was the only employee working that day trained to operate his laminating machine, and had he not been there, the production line would have shut down.

Ramos focused on why Madrigal’s conviction had been overturned.

“The court didn’t reverse it and say that this happened because he’s innocent — it’s because of the incompetence of his counsel, correct?” he asked.

“After we established the alibi to the court, they reversed the conviction,” Simpson said.

The vote was taken: two opposed, with Batjer casting the sole vote for payment.

Madrigal had been denied compensation.

Outside, Madrigal’s attorney slung a consoling arm over his shoulder.

“The good news is we had at least one,” Simpson said of the vote. “I’ve never seen that before.”

They would appeal, the lawyer said, but he warned that it would take time.

Madrigal stepped aside to call his wife.

“How did it go?” she asked.

Muscles in his neck pulsed with tension.

“Not too good.”