[Deathpenalty] death penalty news----OKLA., ORE., US MIL.

[Rick Halperin]

Nov. 23



OKLAHOMA:

Few exonerees receive payment for wrongful convictions

State compensation laws differ widely

Nationwide, more than 240 people have been exonerated through post-conviction 
DNA testing. The National Exoneration Registry lists these among nearly 1,500 
total cases in which people were exonerated due to new evidence of innocence. 
Laws to compensate people exonerated in such cases vary widely.

-- Oklahoma is one of 27 states that have a law allowing compensation for 
wrongful convictions.

-- The state's law provides up to $175,000 to people if their convictions were 
overturned due to actual innocence. The person must not have pled guilty to 
receive compensation.

-- 12 states cap the amount exonerees can receive, including Oklahoma. 3 
states pay less to exonerees than Oklahoma.

-- 10 states provide for social services such as job training, health care and 
counseling. Oklahoma does not.

-- Texas is among states with the most generous compensation laws. The state 
pays exonerees $80,000 per year of imprisonment and provides many social 
services including medical treatment.

-- The Innocence Project recommends states provide exonerated people $50,000 
per year of wrongful imprisonment, social services and health insurance as well 
as an "official acknowledgment" of the wrongful conviction.

What Greg Wilhoit really wanted after 5 years on death row was an apology from 
the state of Oklahoma.

Sure, the money would have made a huge difference in Wilhoit's life after being 
convicted of murdering his wife, losing his freedom and missing the chance to 
raise his 2 daughters.

After 12 forensic experts said Wilhoit's teeth did not match a bite mark used 
to convict him in 1987, an appeals court threw out his conviction. 2 years 
later, a judge halted Osage County prosecutors' efforts to retry him, telling 
Wilhoit: "You're free to go."

But after nearly 10 years of fighting to get some compensation following his 
release, Wilhoit had not seen a dime from the state under its 2003 law 
providing compensation for wrongful convictions.

A review by the Tulsa World shows Wilhoit's difficulty collecting compensation 
under the law is not unusual. Few Oklahomans receive any money after their 
convictions are overturned due to evidence indicating innocence.

Even when Oklahoma passed the law to compensate people like Wilhoit, he was 
doubtful he'd get any help.

"He never allowed himself to have hope because hope just destroys you," said 
his sister, Nancy Vollertsen, of Edmond.

The state fought Wilhoit's attempts to collect money under the law, claiming he 
had not received a finding of "actual innocence" as required. In 2009, the 
state Supreme Court ruled the law should apply retroactively to Wilhoit's case 
and others before 2003 because the law requiring such a finding didn't exist 
then.

With the help of attorney Mark Barrett, Wilhoit eventually convinced the state 
to pay him something in 2012.

However, it was a fraction of what he could have been paid. Terms of the 
settlement are confidential but the amount is about 1/3 of the state's $175,000 
maximum, Vollertsen said.

The years of hard living and bad luck after his release took their toll on 
Wilhoit. He began to drink, was diagnosed with PTSD and was partially paralyzed 
after a car struck him.

Wilhoit died at age 59 on Valentine's Day 2014, about a year after receiving 
payment from the state.

"There's just no way to come out of an experience like that undamaged, when you 
sit in a windowless box for 5 years. ... I always told him how much I admired 
him for even being able to survive it," his sister said.

The World's review shows Wilhoit is among just 6 out of 28 Oklahomans listed on 
the National Exoneration Registry who collected any money for their years spent 
in prison. They served an average of 9 years in prison, with 1/2 serving a 
decade or more.

The National Exoneration Registry is a project founded by the University of 
Michigan law school. The website tracks cases in which a person was convicted 
of a crime and later cleared of all charges based on new evidence of innocence.

Of those 28 cases, 11 people were freed after DNA tests showed they were 
innocent.

Records show 6 people have been freed from Oklahoma's death row after they were 
exonerated. They include Curtis McCarty, who was sentenced to death 3 times 
before DNA tests in 2007 showed he was innocent.

Only 1 of those 6 people, Ron Williamson, collected payment from the state.

Like most other states, Oklahoma's wrongful conviction law requires a legal 
finding of "actual innocence" after convictions are overturned. In practice, 
the process often requires exonerated people to prove their innocence again in 
court.

To seek compensation under the law, exonerees must file tort claims from the 
state or local agency involved in the case. If the agency does not pay the 
claim within the time allowed by law, the claimant must then file a lawsuit in 
state court.

The law also allows payment to people who receive a pardon from the state. 
However the Pardon and Parole Board told Wilhoit the state could not pardon 
someone considered legally innocent, Vollertsen said.

In a few cases reviewed by the World, exonerees filed federal civil rights 
lawsuits and won judgments that were thrown out on appeal.

Records show at least 14 of the 28 people filed either a lawsuit or a tort 
claim, a precursor to a lawsuit that government agencies can pay without going 
to court.

The World found just 1 case in which the state or a local government agency 
paid a tort claim without forcing the exoneree to file a lawsuit under the 2003 
law. That involved Tulsan Sedrick Courtney, who served 16 years in prison for a 
robbery and burglary conviction.

Tulsa police told Courtney and the Innocence Project twice that hair from a ski 
mask and other evidence used to convict him had been destroyed.

Then in 2011, after Courtney had been paroled, the Innocence Project inquired 
again about the evidence. This time, Tulsa police said they found the hair 
evidence. A DNA test excluded Courtney as a possible donor of the hairs and in 
2012, a judge ruled he had proven his innocence.

Courtney has filed a federal civil rights lawsuit against the city of Tulsa, 
claiming the city used manufactured evidence to convict him and obstructed his 
efforts to prove he was innocent.

Gerald Bender, litigation manager for the city's legal department, said he 
could not comment on Courtney's case.

In general, Bender said the city has no policy on handling claims filed under 
the law and "each case is evaluated on its merits."

'The lucky ones'

The city of Tulsa was ordered to pay Arvin McGee the largest judgment to any of 
the 28 exonerated Oklahomans.

McGee was convicted of the 1987 rape and kidnapping of a Tulsa woman and was 
released from prison in 2002 after DNA evidence proved his innocence. Later 
that year, the DNA was matched to a man already serving time for sex crimes.

McGee sued the city of Tulsa in federal court, claiming Tulsa police failed to 
investigate leads to other suspects adequately, failed to present a photo 
lineup containing other suspects and failed to present live and voice lineups.

In 2006, a Tulsa federal jury returned a $14.5 million verdict in McGee's 
favor. He settled with the city and received $12.2 million.

While attending a banquet for the Oklahoma Innocence Project in September, 
McGee told the World he remains in Tulsa and is raising 2 young children.

"I'm still amazed about the time that some of these guys have done," McGee 
said. "We're the lucky ones."

Cases such as McGee's illustrate what can happen when jurors hear details of a 
wrongful conviction. But they are the exception, not the rule.

Out of 11 cases studied by the World in which DNA evidence led to an 
exoneration, 6 people collected money from the state or other government 
agency. Besides McGee's case, payments in only 1 other DNA case exceeded $1 
million, records show.

Those figures are actually higher than the national average, according to an 
Innocence Project report. Nationwide, DNA exonerees win lawsuits in about 28 
percent of the cases.

"I think there's a false assumption that everybody gets a big payday, because 
that's what gets the most attention and of course it has happened," said 
Barrett, Wilhoit's attorney.

Barrett has represented several Oklahoma defendants in high profile cases 
resulting in exoneration. His clients have included Ron Williamson, whose story 
was the focus of John Grisham's "The Innocent Man," and Williamson's 
co-defendant, Dennis Fritz.

Both were convicted in the 1988 murder of a woman in Pontotoc County and 
exonerated in 1999 through DNA testing. Williamson came within 5 days of being 
put to death before his release.

Both received undisclosed settlements from the state following their 
exonerations.

Barrett also represented David Bryson, 1 of 4 people whose convictions were 
thrown out due to false testimony given by an Oklahoma City police chemist, 
Joyce Gilchrist.

Even with the widespread attention given to Gilchrist's false testimony and 
firing, 2 of those people collected nothing from Oklahoma City or the state, 
records show.

Barrett said the state could improve its law by increasing the amount it pays 
wrongfully convicted people and reviewing the standard for proving innocence.

"You almost have to be the case - which are not the majority of exonerations - 
that not only has DNA but has DNA which by its location could have only been 
placed there by the perpetrator. ... Without solving the case for the 
prosecution, even the most innocent person who there is absolutely no evidence 
against cannot prove definitively that they were not the person who did it."

'Not even a penny'

Greg and Kathy Wilhoit had been separated a few weeks when Kathy Wilhoit was 
found with her throat slashed in her north Tulsa apartment, where she was 
living with the couple's 2 young daughters.

The sole evidence used to convict Wilhoit in Osage County of his wife's 1985 
death was a bite mark on her breast. Osage County District Attorney Larry 
Stuart found 2 dentists who said the bite mark matched Wilhoit's mouth.

Wilhoit's trial attorney, whose alcoholism was not a secret in the legal 
community, didn't ask any experts to look at the bite mark evidence. The jury 
handed Wilhoit a death sentence.

Wilhoit was assigned an appellate attorney, Barrett, who sent the bite mark 
evidence to 12 of the top forensic dental experts in North America. They 
weren't told whether the defense or prosecutors sought their opinions.

All 12 returned reports finding no evidence that Wilhoit's teeth matched the 
bite mark.

Use of bite-mark evidence in criminal cases has since been discredited. It has 
a 63 % rate of false identifications, the American Board of Odontology found in 
one study.

Still, it would take Wilhoit 4 years until the Court of Criminal Appeals 
examined the evidence and overturned his conviction.

During that time, the state carried out its 1st execution since the 1970s. 
Wilhoit's cell was about 100 feet from the death chamber. The experience led 
him to become a leading advocate of abolishing the death penalty, speaking 
across the nation about his experience.

In a 2003 interview posted on the Death Penalty Information Center's website, 
Wilhoit described the toll his wrongful conviction had on his life:

"I have been out more than 10 years. The toughest parts have been 
re-assimilating into society, and dealing with emotional and psychological 
damage from my experience. I lost the opportunity to raise my 2 daughters. I 
never received an apology. ... Every time I tell my story, it validates my 
experience. I tell what happened to me, how I feel, and let people draw their 
own conclusions."

(source: Tulsa World)






OREGON:

Mental health evaluation in Oregon bridge death


A woman accused of throwing her 6-year-old autistic son off a bridge on the 
Oregon coast earlier this month will undergo a mental health evaluation at the 
state mental hospital.

A judge ordered the evaluation on Thursday after Jillian McCabe's defense 
attorneys requested it.

KATU-TV reported the attorneys say McCabe had previously been committed to the 
hospital.

McCabe has not entered a plea on charges of aggravated murder, murder and 2 
counts of manslaughter. The aggravated murder charge carries a potential death 
penalty, and was brought because the victim was under 14 years old.

An uncle has said she received psychiatric treatment for emotional distress 
from years of caring for the child, and more recently for her disabled husband.

(source: Associated Press)






US MILITARY:

Court Martial Defense Lawyer Published in American Bar Association Book


Court martial defense lawyer co-authors chapter in American Bar Association 
book, "The State of Criminal Justice 2014." As one of the cornerstones of the 
Criminal Justice Section's work, this publication serves as an invaluable 
resource for policy-makers, academics, and students of the criminal justice 
system.

Military defense attorney, Mr. Waddington, recently co-authored a chapter in 
the American Bar Association book, "The State of Criminal Justice 2014," along 
with criminal defense attorneys, Morgan Raye Sigman and William L. Summers. 
Their chapter was titled, "Executing the Severely Mentally Ill."

In their chapter, the authors explore the considerable gaps in the criminal 
justice system when it comes to protecting severely mentally ill defendants. 
Reviewing U.S. and state Supreme Court decisions in various death penalty 
cases, the authors note that under current law, persons considered severely 
mentally ill but not insane or mentally retarded have no exemption from capital 
punishment.

"The State of Criminal Justice" is an annual publication of the American Bar 
Association (ABA). This book describes major developments in different aspects 
of the criminal justice system during 2013 and suggests likely directions for 
the coming year. As well as covering more familiar turf, many chapters also 
address cutting edge topics or developing trends in criminal justice.

As one of the cornerstones of the Criminal Justice Section's work, this 
publication serves as an invaluable resource for policy-makers, academics, and 
students of the criminal justice system. The 2014 volume contains 21 chapters 
focusing on specific aspects of the criminal justice field, with summaries of 
all of the adopted official ABA policies passed in 2013-2014 that address 
criminal justice issues.

Michael Waddington was also a contributing author to "The State of Criminal 
Justice 2013."

About Michael Waddington:

Mr. Waddington defends serious criminal cases worldwide. Some of his high 
profile cases have been reported on by major media outlets including CNN, The 
Rolling Stone, The New York Times, NPR, The New Yorker, Time, ABC Nightline, 
Good Morning America, the BBC and have been the subject of books and movies.

His practice focuses on defending military service members at court martial and 
administrative separation boards. He has successfully defended military 
personnel in Europe (Germany, Italy, England, Spain), the Middle East, the 
Pacific (Hawaii, Korea, Japan, Guam), and throughout the United States.

(source: Free Press Release Center)