July 29 2015 12:00 AM

How the deck is stacked against wrongfully convicted people in Michigan

art11636
Donya Davis served seven years of a 22- year prison sentence after a sexual assault victim identified him in a lineup. Post-conviction DNA testing tied the crime to another man. The 36-year-old Detroit man was released in summer 2014.

What do you say to him now? Congratulations?

"It was a great day," he said. "The newscasters were there, my mom, my kids. But that day lived shortly."

A year later, Davis is broke and still looking for a permanent job. He lives with his mother.

He wants to finish training as a chef, but can´t afford the classes. His conviction, though wrongful, clouds every job interview. "Corporate will ask questions," one interviewer told him — and didn´t call back.

"It keeps coming up and I keep explaining it," Davis said.

Meanwhile, he works as a personal trainer "to keep afloat" and spends a lot of time in the park with his kids.

"I have to be upbeat. On the inside, I die. Every morning, I get up and I force this smile and I go."

Michigan is one of 20 states that offer no help or compensation to wrongfully convicted people — not even a night in a motel. In Michigan, 55 people have been wrongfully convicted and exonerated since the mid-1980s, and about 1,600 nationwide, according to the University of Michigan Innocence Clinic.

Davis is the third person exonerated with the help of Cooley Law School´s Innocence Project, the only program in Michigan that works to exonerate wrongfully convicted people on the basis of DNA evidence. It is investigating 90 cases at the moment.

"We actually treat people who were guilty of a crime better than people who were wrongly convicted," the Innocence Project’s director, Marla Mitchell-Cichon, said.

"There are a lot of services and programs available for them to get re-integrated into society."

"We don´t get what the guys on parole get,´ Davis said. "We don´t get the housing, nothing."

That may change this year, though. Senate Bill 291 and House Bill 4536, compensation measures co-sponsored in the Senate by Steve Bieda, D-Warren, and Rick Jones, R- Grand Ledge, and in the House by Stephanie Chang, D-Detroit, are making progress.

The House Criminal Justice Committee advanced the bill in June by a unanimous 8-0 vote. Jones said he plans to take up the Senate version this fall in the Judiciary Commitee, which he chairs.

If the bill becomes law, wrongfully convicted people would qualify for $60,000 for each year in prison, lost wages and attorney fees. Accepting the compensation would mean waiving the right to sue the state.

"I would enjoy it, but it´s not really for me," Davis said. "I would give that to my mom. I get a bone, it´s hers."

Faces and fates

In 1985, David Gavitt´s house in Ionia caught fire. His wife and two children died and he was seriously injured.

Gavitt was convicted of arson and murder, even though the house was not insured, and prosecutors did not find a motive.

In 2012, the case was re-opened by the University of Michigan Innocence Clinic, the only clinic in the state that handles non-DNA cases. Modern fire investigators, working with the Ionia County Prosecutor´s Office, found that the signs of arson used to convict Gavitt in 1985 have been discredited since then. A new investigation found no evidence of gasoline or accelerant.

Gavitt was released June 26, 2012, after serving 27 years in prison for a crime he didn´t commit.

Chang, House sponsor of the compensation bill, believes that putting faces like Gavitt´s on the issue of wrongful conviction is the best way to persuade legislators and the public to help.

Chang first saw a few of those faces eight years ago, while working on reform of Michigan´s indigent defense system.

"I met a number of exonerees, people who had had ineffective assistance of counsel," she said. "It opened my eyes to their stories."

On May 7, Gavitt, Davis and four other wrongfully convicted people gathered at the State Capitol for a hearing on the compensation bill.

One of the six was Julie Baumer, convicted of first-degree child abuse and thrown into prison for more than four years until her conviction was overturned in 2009. Scans of the baby´s brain revealed that a stroke, not shaking, was the cause of death.

Another exoneree, Kenneth Wyniemko, was convicted in 1994 of one count of armed robbery, one count of breaking and entering, and 15 counts of CSC 1, or rape in the first degree. He spent just under 10 years in prison.

In 2003, Wyniemko was freed on the basis of three different items of DNA evidence, including semen collected at the time. Carl Marlinga, then Macomb County prosecutor, publicly called Wyniemko "a stone cold innocent man." Five years later, the same evidence, entered in the state´s DNA data bank, led to the perpetrator.

Wyniemko was the first person to be exonerated by Cooley´s Innocence Project. His case is a comprehensive study in twisted justice.

"Everything that could go wrong in the criminal justice system went wrong for him," Mitchell-Cichon said.

Mitchell-Cichon said semen found on the victim´s clothes was tested for blood type and excluded Wyniemko, but the evidence was withheld by police. The evidence was not DNA tested, although such testing was available.

A vague composite drawing and a poorly managed lineup led to Wyniemko´s misidentification by the victim. Eyewitness misidentification is the leading cause of wrongful convictions nationwide, according to the University of Michigan Innocence Clinic.

Another leading cause of wrongful conviction is the "jailhouse snitch," a prisoner informant who lies to make a deal with prosecutors. While Wyniemko was waiting for a trial in a Macomb County jail, a prisoner facing a life sentence became a witness against him. The prisoner told cops Wyniemko confided to him that he committed the crime.

"The lead detective and the prosecutor pulled that prisoner out of the jail, gave him the police report, went to lunch and came back," Mitchell-Cichon said. She added a significant shrug, as if to say, "you connect the dots."

Junk science

The discredited arson evidence that led to Gavitt´s conviction is one of many varieties of junk science that find their way into courtrooms and influence juries and judges.

"We have tolerated things in the criminal justice system we would never tolerate in any other arena," Mitchell-Cichon said. "You would never see this junk science in a civil litigation, where people are fighting over money."

The latest success for Cooley´s Innocence Project is a classic tug of war between DNA testing and junk science.

On May 22, after hundreds of hours of work by the Cooley Innocence Project team, the Michigan Supreme Court ruled that the Court of Appeals must consider a request by a man convicted in 1989 of murder, Gilbert Lee Poole Jr., for DNA testing in the Oakland County Circuit Court. Poole has been in prison 26 years. The Court of Appeals or dered the DNA testing July 6.

A controversial Michigan forensic dentist, Allan Warnick, testified that Poole´s bite marks were on the victim.

"[Warnick] has been associated with three or four cases in Michigan where he´s been 100 percent someone´s teeth marks are on a victim´s body," Mitchell-Chicon said. "There´s no scientific support for that whatsoever, and yet Gilbert Poole is still in prison because that was used against him."

But the evidence in the Poole case is not in the best condition. The case hangs, literally, on a thread.

"The blood on the bloody stones and grass was lifted with a piece of thread and blood typed," Mitchell-Cichon said. Blood typing uses up a lot of evidence. "Hopefully we have the threads and hopefully we have some visible blood on there."

Cooley´s Innocence Project team didn´t take much time to celebrate the recent progress in the Poole case.

DNA testing "gets better as we speak," Mitchell-Cichon said, but it´s not a magic bullet.

"I´d love to be put out of business," she said.

That´s not happening soon. Since its beginnings in 2001, the Cooley team has screened more than 5,000 inmate requests and filed over 30 petitions for DNA testing. As fall approaches, Mitchell-Cichon, 12 student interns and a paralegal are working on about 40 cases, with a backlog of 50 waiting to be assigned. In a storage closet lie six boxes of cases recently shipped from the New York Innocence Project, which dropped its Michigan cases to ease its own backlog of 6,000 cases.

The endgame for Mitchell-Cichon is not exoneration, but getting rid of the underlying problems that convict innocent people in the first place — the false identifications, junk science, jailhouse snitches and threadbare, overworked public defender offices that account for an overwhelming number of wrongful convictions.

It exasperates Mitchell-Cichon that judges and juries are decades behind established social science research on eyewitness identification.

"There is no direct relation between how certain I feel about identifying you and the accuracy of the identification, yet it is one of those factors [they rely on], and there are a bunch more," she said.

While poring over trial transcripts, student interns at Cooley´s Innocence Project frequently erupt in astonished cries of, "Why did the attorney say that?" "It´s amazing what passes for a lawyer doing their job," Cooley Innocence Project legal intern Joseph Lotarski said. "You have to meet a very high threshold to be convicted of malpractice. This work definitely gives us a look at what not to do when we go out and practice law."

For Mitchell-Cichon, turning rocks over and exposing the justice system´s bugs is a crucial part of post-conviction legal work.

"The DNA has opened a window," she said. "These causes [of wrongful conviction] have been here forever, but people are finally paying attention."

Razor wire

As if wrongful conviction weren´t enough, layers of legal catch-22s add to the razor wire that ensnares wrongfully convicted people in Michigan. Perversely, the trial judge sentenced Wyniemko to the maximum of 40 to 60 years because he didn´t show remorse.

"I can´t show remorse for something I didn´t do or didn´t have any knowledge of," Wyniemko said.

The parole system adds another layer. To be paroled in Michigan, you have to take responsibility for the crime.

"I´m counseling my clients on that issue all the time," Mitchell-Cichon said. "They maintain their innocence when they go up before the parole board and they don´t get paroled. An innocent prisoner gets no break in Michigan."

Plea bargains, legal defenses and deals that may lessen prison time for criminals are not available to the wrongfully convicted.

People who plead guilty, whether in earnest or as part of a bargain, can´t get DNA testing later, under the state´s 2001 postconviction DNA testing law. A defense such as consent (in rape cases) or self-defense (in murder cases) is not a viable legal strategy for an innocent person who hopes DNA will exonerate him someday.

Cooley´s Innocence Project is screening guilty pleas, which aren´t covered by the statute, but Mitchell-Cichon isn´t sure how her team will get the legal traction to obtain DNA testing for clients who pled guilty.

"We will go to the prosecutor, present our case, and convince them that it´s in their best interests," Mitchell-Cichon said. "If the wrong person is in prison, not only is that injustice, but it´s unsafe."

Remedies

There is a remedy for wrongfully convicted people in Michigan — a federal civil rights lawsuit — but it´s a crap shoot. Out of 55 wrongfully convicted people in Michigan, 14 have won a lawsuit, with one more pending.

Wyniemko settled with Clinton Township for $3.7 million.

"I was one of the lucky ones," Wyniemko said.

Federal civil rights suits are meant to punish intentional abuses or wrongdoing by local actors, not to compensate the wrongfully convicted. Prosecutors and judges are absolutely immune to suit and most other state actors have qualified immunity.

Only about 40 percent of plaintiffs who can afford the time and money to sue the state end up recovering. The cases often drag on for years.

"In the meantime, what do you eat?" Wyniemko said. "At two years, mine was one of the quickest settlements in the country."

But most cases of wrongful conviction don´t involve wrongdoing on the part of prosecutors or cops.

That leaves most exonerees with nobody to sue and nothing to show for a big chunk of their lives.

"Starting over is kind of rough," Donya Davis said. He moved in with his mother, Denise Larry, the night after he got out of prison.

"I´m trying to fix everything," he said. "A lot of things fell apart when I left."

Davis was 28 when he was arrested. His main source of income was working at his grandfather´s auto shop. His grandfather died and the shop closed up while Davis was in prison.

"My mom mortgaged her house and spent everything she had to pay for my lawyers," Davis said. "I´m hurting bad, but I need to pay her back first."

People versus person

Rick Jones, chairman of the Senate Judiciary Committee and cosponsor of the pending compensation bill, said the state has a "moral obligation to assist people that are wrongfully imprisoned."

"I remember back in my days in law enforcement, when people were released with a set of clothes and $20 in their pocket," said Jones, sheriff of Eaton County till he was elected to the Legislature.

Jones said the state has gotten better at helping parolees and prisoners who have served time, but lags when it comes to helping the wrongfully convicted.

"They certainly deserve some compensation to prepare for the rest of their life, and most people would agree with that," Jones said.

Jones said he plans to bring up the bill this fall.

"There´s a great deal of potential to pass the House and Senate and go all the way," he said. A provision barring a wrongfully convicted person from suing the state after accepting compensation will be "the key provision to getting it passed" this time around, he said.

Stephanie Chang agreed. "We had a great hearing in the House Criminal Justice Committee, it passed out of committee unanimously and I´m hopeful it will move forward," she said.

The compensation bill´s staunchest champion, Sen. Bieda, has introduced the bill three times in the House and three times in the Senate.

Bieda doesn´t know why the bill has taken so long to pass in Michigan than in other states.

"I was kind of shocked that Texas is one of the leaders on a criminal justice issue," Bieda said. "Their compensation is higher than ours would be — $80,000."

Bieda said he took an "average" of what other states are doing to arrive at the $60,000 figure.

"Unlike other bills, it affects so few people, maybe it doesn´t have the political appeal other bills might have," Bieda mused. "No companies will benefit. You don´t have that lobbying on it."

Chang said term limits have made it harder to push the bill forward.

"It´s been a constant process to keep educating legislators about this issue," she said.

Jones blamed the recession. "In the past, legislators were concerned about passing anything that had money connected to it," he said. "But this year, I see more legislators interested in changing the system."

Bieda estimated that compensating the wrongly convicted could cost the state $15 million the first year and less in later years, as the backlog is cleared. (Various studies put the cost per year to keep a person in prison around $30,000.)

There is another reason Bieda and Jones are hopeful the bill will pass soon. Gov. Rick Snyder gave supporters of the bill strong political cover in a message on criminal justice reform May 18.

"Wrongfully accused individuals face unique challenges," Snyder said. "Though we can never fully repay them for their hardships, I am calling for legislation that will help exonerees get back on their feet after a wrongful conviction."

"I am optimistic because the governor spoke out about it," Jones said. "There are signs it´s going to go all the way."

Since Wynimko walked out of prison June 17, 2003, he has become an advocate for compensation, speaking at events around the state.

When he is asked why the state should compensate wrongfully convicted people, he has a lot of answers, but sums them up this way.

"Look at the caption of my case," he said. "´The People of the State of Michigan v. Kenneth Wyniemko.´"