Compensating a Man Wrongly Convicted

What are 16 years of an innocent man’s life worth? And if the state acted responsibly in convicting him, should taxpayers foot the bill anyway?

Both questions were put to members of the Legislature last week--on behalf of former Tustin resident Kevin Lee Green--in the form of a bill apparently unprecedented in California. The measure seeks to give him $770,000.

Green was imprisoned 16 years and three months before DNA tests proved that he was not guilty of the rape and attempted murder of his pregnant wife and the murder of their daughter, who was stillborn after the attack.

An Orange County judge proclaimed Green innocent in June 1996, and another man, who later confessed to the attack, was convicted.

That left Green free--and penniless.

A wrongly convicted person usually sues for a substantial sum from whoever is held responsible for the miscarriage of justice.

But Green has no such prospects. His conviction was not the product of shoddy police work, bad legal advice or prosecutorial misconduct. Green’s then-wife, who suffered a head injury and memory loss from the 1979 bludgeoning, identified him as her attacker. The jury believed her.

After being freed, Green, now 40, was left with an apology from the court and the prosecutor, and later received $10,000 from the state--the maximum available under a 58-year-old law to compensate those wrongly convicted.

“I’m happy to be free,” Green said in a telephone interview from his home in Jefferson City, Mo. “All I prayed for all those years was to get my life back--the good and the bad.”

That’s not enough, says Assemblyman Scott Baugh (R-Huntington Beach), who is sponsoring the bill that would compensate Green for the years he spent in San Quentin and Soledad state prisons.

“When the system fails on that level, it’s society’s duty to do something about the situation,” said Baugh, Republican leader of the Assembly.

The lawmaker calculated the amount at the $100-a-day rate the state Department of Corrections uses to compensate prisoners whom it is unable to release on the appropriate date--plus enough extra to pay federal income tax on the award.

None of the legislative staff members who analyzed the bill could find another like it in California, though there have been several similar cases in other states.

Baugh’s bill passed its first hurdle last week in the Assembly Public Safety Committee. It won strong support from Democrats, who control the Assembly, so its prospects for success are promising.

Republicans endorse the concept too.

“If the state wrongfully imprisons someone, the state has an obligation to make them whole,” said Assemblyman Tom McClintock (R-Northridge).

Even taxpayer watchdog groups are not upset. A spokesman for the Howard Jarvis Taxpayers Assn. said wrongful imprisonment is a form of government abuse, which is what his organization opposes.

“This sounds like exceptional circumstances, and I don’t think the taxpayers would be that outraged,” said John Coupal, the group’s president.

It’s too soon to know how the measure will fare in the state Senate or with the governor. But if the bill succeeds, Baugh said, he will follow it with a separate measure to establish the right of others wrongly convicted to file similar claims against the state.

Baugh said prosecutors and defense attorneys have assured him that such situations are rare and that his proposal would not lead to a stampede of applicants draining the state’s bank account.

In 1941, California became the first state to institute a law to compensate the wrongly convicted, a progressive step in that era, said Adele Bernhard, an associate professor at Pace University School of Law in White Plains, N.Y.

But the top award of $10,000 is the same now as it was then. Had the amount been adjusted for inflation, Green would have received nearly $112,000.

Fourteen states, the District of Columbia and the federal government now have compensation laws, Bernhard said. Most damage caps, like California’s, are low. Only New York and Maryland have not set limits on awards.

“It would be very significant if California changed limits . . . because California showed the way at the beginning,” said Bernhard, who wrote a law review article on compensating the wrongly imprisoned.

There have been spot bills in other states aimed at high-profile miscarriages of justice such as Green’s, Bernhard said. But they are less fair than a claim system, she said.

“The problem with the private-bill process is that it is essentially a political process [available to] the most sympathetic person with the most compelling circumstances.”

Green fits that category, but he said his goal is to use his own experience to open the process for others in California and other states.

“I want it to be an eye-opener,” he said. “Let them all look at what happened to me and other people coming out of prison.”

Though Green has always proclaimed his innocence, his former wife, Dianna D’Aiello, still believes that he bludgeoned her. Gerald Parker, a serial killer called the Bedroom Bandit for breaking into women’s bedrooms to rape and kill them, confessed to the attack. Parker has been convicted of six murders.

Green was released from prison three years ago and moved to Missouri, where his parents live. He works in the hardware department of a Wal-Mart for $7.80 an hour and lectures to college and law school classes.

If the money comes his way, Green said, he will build a retirement fund, repay his parents for more than $30,000 they spent on his lawyers and other costs, set up a college fund for his grandchildren from a first marriage and, maybe, finish college himself.

For now, Green enjoys bowling with his father and, as a member of a Marine Corps service organization, dons his uniform for parades, funerals and ballgames.