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Wyoming lawmakers have a major injustice to correct

Of the many questionable and flat-out wrong decisions the Wyoming Legislature made in 2016, which one would you most like to see corrected next month?

My choice would be that Wyoming show itself willing to try to correct one of the state’s biggest mistakes.

Even though I’ve preached about it since 2013, I’m not talking about the state’s failure to approve Medicaid expansion — that ship has sailed. State lawmakers rejected the idea for four consecutive years and would no doubt make it a fifth in 2017 if they could. But Donald Trump’s election as president ensures that the issue is dead, since Republicans have long promised to repeal the Affordable Care Act and they now control the White House and both houses of Congress.

It’s no longer a question of states deciding to approve Medicaid expansion, because now the focus is on what will happen in the states that did opt for the program. Millions of the working poor who were finally able to obtain health insurance under the ACA, or Obamacare, will likely see it heartlessly stripped away by the new administration.

If Wyoming is a “winner” because it never expanded Medicaid and now doesn’t have to deal with dismantling it, that’s a pretty hollow victory. State lawmakers could have at least provided three years of healthcare for poor, childless adults, and it would have all been paid for with federal funds. It’s time for the Legislature’s GOP leadership — which has always said it wants to create a health-care program unique to Wyoming to help the uninsured — to get busy.

The 2016 Legislature also callously discarded some existing worthy programs that could have continued to help the poor. That happened when it decided to do away with the Tax Rebate for the Elderly and Disabled program and closed the state’s eight Family Literacy Centers. But the majority of lawmakers who made those indefensible decisions have been returned to Cheyenne by the voters. With a growing budget shortfall there is no chance either program will be revived.

And don’t get me started on state legislators who gave the University of Wyoming $8 million to be more competitive in recruiting athletes. As Trump might say, I’d yank that money back so fast their heads would spin.

Put Wyoming on the right side of fairness

No, the bill I hope the Legislature will bring back for more consideration is one that would cost the state some money, but more importantly put Wyoming on the right side of a fundamental issue of fairness. Wyoming should join the other 30 states that have a system to uniformly compensate people wrongly convicted of crimes who have been proved innocent by new DNA evidence.

The Legislature began looking at the issue in 2013 after Andrew Johnson, an African-American Cheyenne man who spent 24 years in the state penitentiary, was exonerated by the courts after being wrongly convicted of rape and aggravated burglary. It wasn’t until the Rocky Mountain Innocence Project petitioned the courts for DNA testing that the state discovered Johnson’s DNA didn’t match evidence at the crime scene. The victim recanted and the state finally arrested the real perpetrator.

Wyoming does not have a law that provides compensation for individuals exonerated by DNA, but after hearing the injustice that happened to Johnson many people thought the state had an obligation to at least monetarily help make up for the time he spent in prison. A majority of state legislators agreed in 2014, when both the Senate and House passed a bill that provided up to $500,000 to any Wyoming inmate cleared because of new DNA testing. The compensation would be paid in $50,000 annual installments.

But the House amended the bill to require a convicted person to prove his innocence at a new court hearing, even if all charges against him had been dropped. That would have been impossible in Johnson’s case because much of the evidence that had been used to convict him no longer existed and several defense witnesses had died.

The Senate rightfully balked at the House’s changes, which treated innocent people as guilty and forced them to spend money they didn’t have on more legal procedures to further prove they didn’t commit the crime.

A conference committee was appointed to work out the differences in the two versions of the bill, but the session ended without a compromise. Johnson missed watching his three daughters grow up and his grandchildren being born. But because the wrangling between the House and Senate didn’t end in a bill the chambers could agree on, Johnson didn’t receive a dime from the state.

A second failure

It was a great injustice, but one that could have been corrected with some more work on the bill the next year. In 2015 Rep. Charles Pelkey (D, HD-45, Laramie) drafted a bill that would compensate people like Johnson at $100 per day, up to a maximum of $500,000. But realizing the bill didn’t have nearly enough support in the House to pass, Pelkey withdrew it.

Both prosecutors and lawyers who specialize in wrongful conviction cases worked with lawmakers on the issue during an interim study. Supporters decided to start the 2016 bill in the Senate, where Sen. Floyd Esquibel (D, SD-08, Cheyenne) sponsored Senate File 51. It mirrored the federal compensation policy. The measure, which would have provided up to $500,000 in compensation for the convicted person whose “actual innocence” has been determined by court action, won introduction by a 25-5 vote. The Senate Judiciary Committee approved it 3-2.

The bill stated that to obtain a new trial a “reasonable probability” had to exist that the outcome of the case might have been different if the evidence had been available to the defense.

But in Committee of the Whole,  Republicans lined up to oppose SF 51 for a variety of specious reasons. Some said they were sympathetic because of what Johnson went through, but it wasn’t the state’s responsibility to compensate inmates because it was a jury of their peers that determined they were guilty, not the state. Others maintained the bill would change the standard for obtaining a new trial on the grounds of prisoner clearance by non-DNA evidence. Sen. Curt Meier (R, SD-03, LaGrange) claimed using “a reasonable probability” standard was less strict than the current language for DNA cases, which is “clear and convincing evidence.”

“The proposed standard is so low, you’re going to wind up with 100 new trials a year,” Meier said. “That’s a standard I can’t live with.”

Esquibel defended the bill and pointed out that “reasonable probability” is actually considered a tougher standard by a vast majority of states. “This isn’t like someone getting a new trial because he says, ‘I didn’t do it,’” the sponsor said. “This is specific, newly discovered evidence.”

Only two GOP senators — Sen. Bruce Burns of Sheridan and Sen. Cale Case of Lander — joined the four Democratic senators in voting for the bill. Twenty-four Republicans killed it.

As I write this column, 55 bills in the House and 47 in the Senate have been pre-filed and none addresses the issue of compensation for the wrongfully convicted. Esquibel lost his seat in the general election, and I don’t know if there’s anyone willing to take up the banner and fight for a similar bill.

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But I do know what’s fair, and I believe a majority of legislators realize that Johnson got the shaft from Wyoming’s criminal justice system. They managed to come together in 2014 to agree on the concept of a fair compensation proposal but couldn’t seal the deal. Three years later, with many new legislators who have never voted on the issue, there’s still a chance for the public and the legal community to press for a different conclusion.

It’s probably too late to make any legislation retroactive and help Andrew Johnson. But this law is needed to show that when the state makes a mistake and imprisons the wrong person for years, Wyoming is ready to recognize it and stand up to prevent other such inmates from being released with nothing more than a “sorry.” “Gee, we’re sorry:” Does anyone in this state actually believe that’s enough?

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About the Author

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Kerry Drake is a veteran Wyoming journalist, and a contributor to WyoHistory.org. He also moderates the WyPols blog. He has more than 30 years experience at the Wyoming Eagle and Casper Star-Tribune as a reporter, editor and editorial writer. He lives in Casper.

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2 Responses to Wyoming lawmakers have a major injustice to correct

  1. Paul D. Butler December 30, 2016 at 5:49 pm #

    May be the first time ever…….that I agree with your thoughts. Mark it down……..conservatives and flaming liberals alike………do NOT want innocent folks prosecuted……….at least most don’t. DNA testing has changed a lot of things……..just ask OJ.

    Hyattville, Wyoming

  2. Bob Moore December 27, 2016 at 2:39 pm #

    The DNA proof resulted in exoneration and then the victim recanted and then authorities arrested the real perpetrator! The first should have been enough to clear Mr. Johnson’s record, although the years can never be recovered. My question is, why would a new trial be required to prove innocence when the DNA evidence did just that? This onerous requirement and any of the other rationales concocted by the finger-wagging legislators show the extent to which they were ever serious in the first place concerning fairness and any amount of compensation to help right a wrong. The idea of the state bearing no responsibility because he was convicted by a jury of his peers holds absolutely no water. The court and jury system was set up by the state as an arm of governmental responsibility to the citizenry, and as such the state is complicit in all court proceedings and outcomes. Oh yeah, and by the way, the state through legislative processes passes bills that become laws the state, county, and local courts use to try, sentence, and imprison people. Compensation would act as workman’s comp for wrongfully imprisoned members of our society, and legislators would be taking personal and institutional responsibility for their actions, and by extension, those of the state and citizens they represent.

    Laramie, Wyoming

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