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Legislature weighs 2 bills to aid wrongly convicted felons

When Donya Davis was charged with rape in 2006, police tested a piece of the evidence collected in the victim’s rape kit.

He wasn’t a match.

But because the victim identified him as her assailant and a judge didn’t believe his alibi defense during a 2007 bench trial in Wayne County Circuit Court, Davis began a 67-year prison sentence for first-degree criminal sexual conduct and other charges in the woman’s attack. Early on, he wrote to law students and attorneys at the Cooley Innocence Project, part of the Thomas M. Cooley Law School, asking for help with his case.

“At first they had to turn me down because there was a law prohibiting them from testing,” Davis said. “It changed … and that’s why they wrote me back.”

When Davis was convicted in 2007, he wasn’t eligible for post-conviction DNA testing because the law then limited the right of convicted defendants to petition for scientific analysis in convictions before 2001. Michigan lawmakers revisited the law in 2008, allowing DNA testing for some convictions after 2001, including Davis’s.

With help from the lawyers and students at Cooley, Davis got a new test on a second sample in the victim’s rape kit. The results again showed he was not her rapist. Cooley made a motion for a new trial on his behalf, and he was freed on bond earlier this year. The Wayne County Prosecutor eventually dropped the charges.

But Michigan’s post-conviction DNA testing law is set to expire at the end of next year, and unless the Legislature extends the deadline or eliminates it, prisoners like Davis won’t have a chance to prove their innocence.

“It saved my life,” the 36-year-old Detroit man said. “Getting any kind of leverage in the courts is so, so hard.”

Extending DNA testing

A bill, introduced by Sen. Steven Bieda (D-Warren) and Sen. Rick Jones (R-Grand Ledge), would again extend the deadline to petition for DNA testing in certain cases through 2018.

Jones, a former Eaton County Sheriff, who chairs the Michigan Senate Judiciary Committee, said he’s hopeful the bill extending testing will get a full hearing in the Legislature’s lame duck session this year and get to the governor’s desk.

“I want bad guys to be put away but I certainly don’t want anybody who’s innocent to be convicted,” he said. “If it’s possible to free somebody with DNA evidence, I want to give them every opportunity to have that evidence properly examined.”

Marla Mitchell-Cichon, who directs the Innocence Project, now at Western Michigan University, said she, students and other attorneys have screened more than 5,000 cases since the clinic began in 2001, often determining if DNA evidence exists. They’ve secured the release of three wrongly convicted men, and along the way learned why the testing needs to be maintained.

DNA testing has become more routine, especially in murder and rape cases, when such evidence exists, Mitchell-Cichon said. But it doesn’t always happen before a trial.

“We have actually reviewed cases where the convictions were actually as late as 2008 where what I would describe as material biological evidence was not tested in the case,” she said. “These cases are always miracles.”

Paying the wrongly convicted

Jones and Bieda, along with several co-sponsors from both political parties, have also introduced a bill that would provide compensation from the state for people who are released after being wrongfully imprisoned. Such a measure has been introduced numerous times in the Michigan Legislature during the last decade, never reaching a full vote.

“What we’re trying to do with that bill is to make sure that if somebody is wrongfully convicted that they’re offered compensation,” Jones said. “They can get a lawsuit going with an attorney, and it could take decades to get it through. We would like to offer them an alternative that they would be compensated for those years immediately so they could go on with their life.”

Bizarrely, under current law, convicted felons released on parole receive automatic benefits from the state while a prisoner who is wrongly convicted does not. Parolees are eligible for some employment-related support, training and housing. Exonerees are not.

“They get nothing other than what we can arrange for them,” said David Moran, director of the Michigan Innocence Clinic at the University of Michigan Law School, which deals with criminal appeals that don’t involve cases that don’t have DNA evidence. “They actually get a handshake, and that’s it.”

Putting a price on prison

Under the proposed compensation bill, the state would pay $60,000 for each year someone was wrongfully imprisoned. But sticking points have been determining who is eligible and what criteria of “innocence” would be used to make the payments, Moran said.

There’s also the politics.

“The key sponsors or key committee member of the bills haven’t pushed them through because they haven’t wanted to face opposition and particularly opposition from the State Attorney General,” Moran said. “So until the State Attorney General gives the green light or at least assumes a neutral position for these bills, we’ve been told that key committee leaders have not been willing to advance the bills so they have quietly died waiting.”

Joy Yearout, spokesperson for Michigan Attorney General Bill Schuette, said in an email that his office has provided "general legal guidance" on the bills but "does not have a formal position on the legislation."

Some 30 states have compensation laws for people wrongly imprisoned and released, and Michigan’s language is modeled after those measures. As for how many people would be eligible, the National Registry of Exonerations, a project of the University of Michigan Law School, has documented 55 people in Michigan who have been exonerated since 1975, which is the first requirement for the compensation. Some of those people wouldn’t be eligible for state compensation because they have won awards in lawsuits, are serving concurrent sentences for other crimes, or have died.

Moran has calculated the limits of what the state would owe those exonerees who are eligible under the proposed law. “If all of them who were eligible for compensation actually got compensation, which would be extremely unlikely, the state’s total exposure would be in the range of $13 million, really not much money when you look at the state budget,” he said.

Sen. Jones says any payouts are the tough sell.

“Well, any time you’re spending tax dollars, it’s hard to get something passed, and people say, ‘Well why would we want to give inmates money?’” Jones said. “Well, we want to give them money only if they’re improperly convicted and imprisoned and certainly if you take a year or two or more away from someone’s life, they should be compensated.”

Without legislative action in the handful of sessions left this year, both bills will die.
Amber McCann, spokesperson for Senate Majority Leader Randy Richardville (R-Monroe), said she hasn’t seen any indication there will be a vote.

“It’s not something that has come up in any discussions lately in terms of having been identified by Sen. Bieda or our caucus as a whole as a bill that they want to take up and vote by the end of the year,” she said.

Davis, the man exonerated this year of rape, said he thinks about the men he met while incarcerated.

“There are many men that are guilty and deserve to be in prison, but there are many men that are in prison and don’t deserve to be there,” Davis said. “They don’t have a voice. They only way to find out is to try. Nobody is looking to see if anyone is innocent.”

Sandra Svoboda blogs about municipal bankruptcy and other issues for WDET, Detroit’s public radio station. She is an occasional Bridge contributor as part of the Detroit Journalism Cooperative, which includes Bridge.

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