By Darlene Natale
Just before Danny Tyus’s retrial for murder, the prosecution’s case fell apart when the eyewitness admitted he lied. Tyus accepted the prosecution’s offer to drop the homicide charge if he pleaded no contest to conspiracy to commit aggravated assault and was released from prison for the time he already served.
Don Ray Adams lost his brother and the family business while serving time for a double-homicide. When the eyewitness recanted, Adams got a new trial and is free after almost 20 years in prison, although he now suffers from panic attacks and must go on welfare to get medical assistance.
These men, and others released from Pennsylvania prisons for crimes they did not commit, receive absolutely no compensation. Pennsylvania is one of 28 states that does not compensate its wrongly-convicted citizens released from prison. These people often lose their children, financial resources to legal fees, possessions, reputation, and jobs while incarcerated. They receive less assistance with re-entry to society and their new-found freedom than prisoners who actually commit crimes and are paroled. Pennsylvania has just begun the process of exploring legislation that sprung from The Report of the Advisory Committee on Wrongful Conviction. The Senate is using that data to craft legislation for the compensation of wrongly convicted and repair of the criminal justice system so errors are less likely.
For the wrongly convicted in Pennsylvania, being released means the jail door is swung open for them to run through and then quickly bolted shut – lest they look back for aid.
“They are victims,” said state Senate Judiciary Committee Chairman Stewart Greenleaf on the justification for compensating the wrongly imprisoned. “They have been proven in many cases where there is DNA evidence involved, beyond all human doubt that they are innocent and so that they have been injured as a result of the mistakes. Justice requires that they be compensated in some way.“ Greenleaf said that if the state doesn’t provide a mechanism for compensation, the exonerees may file Federal Civil Rights actions and may recover “$20 million to $30 million, and maybe rightfully so.”
While Pennsylvania legislators and DAs argue over terms of innocence, it’s neighbors have been proactive in establishing compensation for wrongly-imprisoned. The proposed Pennsylvania legislation would provide $50,000 per year served in prison.
“You can’t put a price on taking someone’s life and to offer up $50,000 a year, for each year they spent is no money. He (Sen. Greenleaf) don’t know what that person could have made,” Adams said.
Thomas Doswell received $3.8 million from the City of Pittsburgh when his wrongful conviction that resulted in 19 years in prison was overturned. Arvin McGee was awarded $12.5 million in an Oklahoma settlement. Thomas Goldstein got $7.95 million in a California wrongful conviction settlement. In a Illinois case, the exoneree was awarded $2.5 million but the state had spent $3.4 million to defend this and another case.
“They represent tragedy not only for the person whose life is irreparably damaged by incarceration for a crime he did not commit, but also for the victim since each wrongful conviction also represents the failure to convict the true perpetrator,” wrote the commission in the Report on Wrongful Conviction.
Tyus, who had been convicted of the 1998 murder of Kevin Golden, was granted a new trial and the prosecutor from the first trial was dismissed. Tyus always maintained his innocence and had witnesses who placed him in Pittsburgh at the time of the New Kensington murder.
“… The jury’s awareness that he(the eyewitness in Tyus trial) received a favor in exchange for testimony might have been enough to cause it (the case)to collapse altogether…’ wrote Judge Richard McCormick in his Opinion and Order of Court.
Before the second trial began, with the prosecution’s case in shambles, Tyus accepted a plea bargain for time served in prison. The Westmoreland County prosecutor dropped the homicide charge and Tyus pleaded no contest to Conspiracy to Commit Aggravated Assault.
“I was facing a life sentence and they had convicted me before and I went under the instructions of my attorney and the judge saying that I should take that plea. Other than that, I would be serving a life sentence for a crime I didn’t commit. I was afraid and it was an all white jury-excuse my impression-and they was very prejudiced and they wouldn’t have heard my side of the story because they told me- if you read the transcripts- they said anybody from that area has to be guilty – from the new Kensington area,” explained Tyus as to why he decided to plead to the conspiracy charge.
“So I just had to let the court have it’s way. So if I had a ‘Get out of Jail Free Card’ – I took it.”
Tyus walked away but that plea still haunts him.
“It’s been about 8 years now and I have just been trying to do odds and ends work….If I have it expunged then I can get employment,” said Tyus. He said he is working as an independent contractor and was offered a permanent position but couldn’t get the job. “It eliminates you once you have a felony. That’s why I am trying to get this felony off of me,” Tyus concluded. He now lives out of state but is working towards the expungement on his own since he has no money for an attorney.
“We would not support expungement in circumstances such as that,” said Richard W. Long, Executive Director of the Pennsylvania District Attorney’s Association (PDAA). “I believe there is a public safety interest primarily in maintaining some sort of record as to what happened,” he added. “If I am employing someone and they have committed a felony, I have a hard time thinking how this is in the public interest to have that expunged,” Long concluded.
Pennsylvania Senator Jim Ferlo (D- Highland Park) said he’s not sure there is anything they can do legislatively in cases where a person agrees to lesser charges.
“The reality is, especially with a lot of public defenders, a lot of folks feel it is futile, especially if they have a minor rap sheet,” Ferlo said. “They think they are going into a prejudicial situation. If they don’t have legal counsel resources, they probably say, “You know what- I will accept the guilty plea for a lesser offense and I’ll do the 18 months.” That is an issue that should be addressed. It is a difficult one,” said Ferlo. He sponsored Senate Bill 580 to address improper eyewitness identification, wrongful conviction, and proper use of DNA evidence. Ferlo’s bill has been assimilated into the Greenleaf’s (R-Montgomery) Bill 1338.
Tyus said he is fighting by himself. He lost his home, a 3-story apartment building, and his vehicles.
“My children don’t even know me as their father. And that’s sad. That’s sad that I couldn’t even raise my own children down there. My children don’t even feel as though I am their father -only by name because of my incarceration. The woman that I had she quit when they said I’m about life in prison. She moved on with her life and with my family because of the detectives with the police department and she didn’t think I had a way out. They got themselves another life. It destroyed everything that I had to build on and my hopes and my dreams was all just shattered behind this here,” Tyus explained.
Tyus, like all those exonerated or released from prison in Pennsylvania, leave with nothing to assist their re-entry to society. Even parolees receive assistance with housing, finding jobs, and cognitive training. Not so Pennsylvanians who were victims of the criminal justice system.
“It is better that ten guilty persons escape than that one innocent suffer,” wrote Sir William Blackstone , the well-known English jurist.
When a witness to a Philadelphia murder recanted her testimony, Don Ray Adams was granted a new trial and the jury came back in two hours with a verdict of not guilty on all charges. Adams was released from prison on April 26, 2011.
“I am too scared to get off the daggam porch,” said Adams who has suffered panic attacks since prison. He said he is afraid of the cops and even of people looking at him. “I stay in the house, I don’t come out. If I do come out, I have someone with me. I definitely don’t come out at night.”
Adams said he had to go on public assistance to get help with his fears and for subsistence income. He is trying to pay back taxes on his house out of his welfare payment.
Adams spent 19 years in prison for a double-murder that he did not commit.
In December 1990, two alleged drug dealers were killed in an alley in Philadelphia. Several eyewitnesses identified the shooter as a roughly 6-foot tall, thin, light-skinned black man who was called “Don Ray.” Don Ray Adams, however, is a 5’4” tall, dark-skinned black man with a short, stocky build. Initially, the police questioned another Don Ray from the neighborhood and released him.
The investigation stalled for a long while before an eyewitness (at the time a crack-addicted felon) emerged saying that she was present at the scene of the crime and that Adams spared her life after robbing and killing the alleged drug dealers. Seven months after the murders, Adams was arrested.
Throughout his arrest, trial, and subsequent conviction, Adams steadfastly maintained his innocence and went through many fruitless appeal attempts. After Adams expended all his appeals and resigned himself to life in prison, the eyewitness came forward and recanted her testimony—stating that Don Ray Bennett was the perpetrator, not Don Ray Adams.
Adams has been reconnecting with family and trying to conquer technology. He said he hasn’t mastered his cell phone and isn’t interested in texting – yet.
Adams’s attorney will file a Civil Rights lawsuit to recover damages for his time served in prison.
Justice 4 All?
Had Adams, or Tyus served their sentences and been released as guilty parolees they would have been embraced by the nurturing arms of the structured parole system that offers help with obtaining documents, a home plan, employment plan, transitional coordinators,and cognitive behavioral training.
Ferlo said the proposed legislation would provide both mental and physical health coverage and job training for the wrongfully convicted. He said an exoneree would be able to take a CDL course to learn to drive a tractor-trailer, Vo-tech classes, or go to a Community College to gain skills to start a new career. However, Ferlo is not optimistic that the political will exists to pass the legislation.
The Pennsylvania bill takes recommendations from the Report of the Advisory Committee on Wrongful Convictions issued by the Joint State Government Commission in September. The recommendations in the report would fund financial compensation dependent on time incarcerated, require electronic recording of interrogations for certain crimes, and it would also address eyewitness identification and proper use of DNA. The report cites the need for funding indigent services and the need for oversight for prosecutorial offices.
Greenleaf said that right now they are in the review, education, and persuasion process to determine the best form of this legislation. He said they are fine-tuning it and discussing it to see what changes need made and to let the public know about the basis of this legislation.
“It is basically best practices. It is a 300 page report with about 1,200 footnotes,” Greenleaf said of the Advisory Committee Report. He explained that the report is scientific evidence of the best practices we should use to alleviate or eliminate wrongful convictions in the future. “ It will make the prosecution’s case stronger -tremendously stronger and there wouldn’t be an awful lot to argue about in these cases on the defense side if they were followed,” Greenleaf explained. “When we do convict the wrong person, then the real perpetrator, the dangerous perpetrator, the person who will continue to, from what we have seen in the past from individuals like this, will continue to commit crimes. And so the public is not well served and not protected by this unless we take steps so that when we prosecute that person and that is the right person, “ Greenleaf concluded.
Long said the PDAA does not support the current Greenleaf bill because it doesn’t adequately define who is wrongly convicted. He said the PDAA looks at “actual innocence.” He said his group has not had input in the Greenleaf bill. In fact, the PDAA supports the Independent Report of Law Enforcement and Victim Representative Members of the Advisory Committee on Wrongful Convictions that was also published in September along with the main report.
Members of the committee on The Independent Report represent law enforcement, victim advocates, and District Attorneys. Senator Greenleaf believes that additional conversations must take place with individuals representing the district attorneys, law enforcement and crime victims before we will be able to move these proposals ahead. He said there may be public hearings as well.
“It is not the intent of the report to cast blame on any part of the criminal justice system. The proposals represented in my bill are meant to assist law enforcement and prosecutors in making sure that the right person is arrested and prosecuted,” wrote Greenleaf to his colleagues in the Senate in October inviting co-sponsorship for his proposed legislation.
Notes of interest in Senate Bill 1338 include:
Expungement: Automatic expungement of the record of the crimes that formed basis of complaint the person was wrongly-convicted of and released. Would not expunge other crimes pleaded to to receive a lesser sentence or for release for time served.
Electronic recording of custodial: in serious crimes such as murders, arson, sexual offences, robbery, etc., an audio or audiovisual recording must be made of the interview of suspects while in custody of law enforcement.
Eyewitness Identification Improvement Act: Purpose is to solve crime, convict guilty, and protect the innocent by establishing and improving live and photo lineup procedures. In live and photo lineups, the administrator does not know the identity of the subject. An eyewitness’s description of the perpetrator should be obtained before lineup. If the eyewitness identifies a perpetrator, they must immediately provide a statement of their level of confidence in his identification.
Informant Testimony: If the prosecution is going to introduce informant testimony, they must in a timely manner disclose the complete criminal history of an informant, reveal a deal, promise, inducement or benefit made or offered the informant, disclose other cases in which the informant testified, and reveal the the details of time and date of the statement. If the informant recanted his testimony, the time, place, and witnesses to the recantation should be revealed.
Preservation of biological evidence and Postconviction DNA Testing: The convict may petition for the testing if he states he is not guilty of the crime, that the evidence was not previously tested or scientific developments in DNA could establish that the petitioner didn’t commit the crime. He must provide a statement of how the DNA test will exonerate or mitigate the sentence. The petitioner agrees that the DNA samples may be entered into law enforcement databases used to investigate other crimes.
The court may order the Commonwealth locate reports, biological evidence (in state custody, hospitals, labs,or private facilities.
If the results of the DNA test are favorable to petitioner the court will conduct a hearing and may vacate the conviction, grant a new trial or hearing, or release the petitioner from custody.
Claims and the recovery of damages for wrongful conviction and imprisonment. A minimum of $50,000 per year served in prison while wrongly convicted will be given in a lump sum or annuity The bill provides compensation for mental and physical health care costs incurred from release date to date of award. Actual innocence is established by a pardon by the Governor, conviction reversed or vacated,or if a new trial is ordered and convict not found guilty or not being retried and the charges dismissed.
Reasonable attorneys fees that may not exceed $75,000 plus expenses.
Compensation to those owed child support by the exoneree for the time served in prison.
Accreditation and oversight of forensic laboratories: All forensics laboratories shall be accredited by a nationally recognized accrediting board.
The Forensic Advisory Board will review and make recommendations on how to configure, fund and improve the delivery of state and municipal forensic services.
The Forensic Advisory board will have the following representation: The Director of the State Police’s Bureau of Forensic services, a state police forensic scientist, two forensic scientists employed by private labs, a director of a municipal forensic lab, The Attorney General, a chief-of-police, a district attorney, a criminal defense attorney (not a public defender), a common pleas judge, a criminal justice or forensic science faculty member from the Pennsylvania State System of Higher Education, and a board-certified forensic pathologist who is a coroner or medical examiner.
Other than Delaware which offers nothing to its wronged citizens, Pennsylvania’s neighbors have developed compensation packages:
New Jersey provides twice their income in the year prior to incarceration or $20,00 per year of incarceration, whichever is greater.
Ohio: $40,330 per year in addition to lost wages,costs, and attorney’s fees.
New York: Damages determined by the court as fair and reasonably compensation.
West Virginia: Damages the court deems will fairly and reasonably compensate him.
Virginia: 90% of the Virginia per capita income for up to 20 years plus $10,000 tuition award to a Virginia Community College.
In Pennsylvania, the Department of Corrections reports a 25% increase in population from 40,965 in 2004 to 51,321 in 2010. The U.S. is imprisoning more people each year, inevitably leading to higher numbers of wrongful convictions. In 1980, the total number of prisoners in state and federal prisons almost quintupled from 319,598 to more than 1.5 million in 2009. The number of women in prison has more than doubled during that same period, according to the Bureau of Justice statistics.