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Crime and Courts

A jury acquitted Clarence Moses-EL of rape after 28 years in prison. But is that enough for him to be repaid for his time behind bars?

Colorado law creates a high burden for winning compensation following a wrongful conviction

Clarence Moses-EL talks to reporters after his release from Denver County jail late Tuesday, Dec. 22, 2015, in Denver. A judge cleared the way for Moses-EL, who has spent 28 years behind bars for a rape he says he did not commit, setting bond that will allow him to walk free. (AP Photo/David Zalubowski)
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When Clarence Moses-EL walked out of a Denver courthouse two years ago after a jury in a new trial found him not guilty of a crime for which he had already served 28 years in prison, he felt free.

“This moment is a moment I’ve fought for for a long time,” he told The Denver Post.

He did not know then, however, that his fight was not over.

A Colorado law passed in 2013 allows people who have been locked up for crimes they did not commit to receive compensation. But Moses-EL has not received any money under the law, and his court case seeking compensation turned into a pitched re-litigation of the rape allegations he’s battled for more than three decades.

The Colorado Attorney General’s Office vigorously opposes Moses-EL’s petition for nearly $2 million in compensation — the amount is based on a formula set by the law. Instead, it points to the same evidence that prosecutors used in seeking to re-convict Moses-EL in 2016, including that the victim in the case continues to believe Moses-EL is the man who raped her.

“Petitioner’s acquittal does not constitute a finding of actual innocence,” lawyers from the Attorney General’s Office wrote in their legal response to Moses-EL’s petition.

With Democrat Phil Weiser being elected to replace outgoing Republican Attorney General Cynthia Coffman, the case may be moving closer to a resolution in Moses-EL’s favor.

On Wednesday, Coffman released a statement saying she will ask the court to pause the compensation case until Weiser takes office. Coffman said Weiser, following a recent briefing on the case, “indicated he strongly favors” settling the matter.

(In his campaign, Weiser expressed interest in finding a settlement in the matter but didn’t offer specifics. Through a spokesman, Weiser refused to respond to questions Wednesday about the case.)

But Coffman’s statement didn’t stop with that announcement. She also lamented the possibility of such a settlement, while expressing her sympathies to the victim in the rape case.

“I am profoundly saddened for the victim in this case and I thank her for the bravery she has shown over the last 30 years,” Coffman said in her statement. “… Sadly, Moses-EL may now walk away with a large amount of cash while the victim’s struggle continues.”

Strict rules for compensation

Colorado’s compensation law passed the state legislature in 2013 with only two no votes, driven by the high-profile exoneration of a man named Robert Dewey.

Dewey spent 16 years in state prison in Colorado for a murder conviction, before DNA evidence freed him, and the compensation bill was written with him in mind. When Gov. John Hickenlooper signed the bill into law, Dewey literally watched over his shoulder.

A year later, a judge awarded Dewey $1.2 million under the compensation law, following a nearly seamless petition process. But Moses-EL is not the only acquittee who has now found that the process is rarely so easy.

Robert Dewey, second from left, speaks to the media moments after being released from the Colorado Department of corrections in Grand Junction, Colo., after serving a life sentence for murder. Dewey was released April 30, 2012, after spending nearly 16 years in prison. Flanking Dewey are attorneys Jason Kreag, left, and Danyel Joffe. (William Woody, Special to The Colorado Sun)

Earlier this year, judges on the Colorado Court of Appeals ruled that a man was not entitled to compensation under the law because he had been acquitted — through DNA evidence — only of the felony charges he faced. A misdemeanor conviction from the same case remained.

Last year, a fight over the Colorado law made it all the way to the U.S. Supreme Court, where the justices overturned a state court ruling requiring acquitted defendants to file a petition under the law to recover any money from the state — even if it is just a refund of the fines and court costs they paid as a result of their now-vacated convictions.

The difficulties in receiving payment under the law essentially all stem from a legal twist of proof.

In a criminal case, it is the prosecution’s burden to prove that a defendant is guilty. But, when seeking compensation, it is that defendant’s burden to prove they are innocent.

It doesn’t matter that a judge has overturned their previous conviction or that a jury has found them not guilty in a new trial. They have to go one step further and prove “actual innocence,” according to the law.

And, as Moses-EL’s case shows, that is an incredibly high bar.

An attack, a dream and a complicated legal history

In 1987, a man broke into a woman’s home in Denver’s Five Points neighborhood and raped her. He beat her so badly that her own sister later could not recognize her. At a trial in 1988, Moses-EL was convicted in the attack.

Even today, those are about the only undisputed facts in the case.

Prosecutors — including, now, Coffman’s office — and Moses-EL’s defenders differ over how quickly the victim identified Moses-EL as her attacker. Moses-EL’s side says the victim admitted the identification only came to her in a dream; prosecutors say she told a neighbor on the night of the attack that it was “Bubbles,” Moses-EL’s nickname.

Police later destroyed DNA evidence after a judge ordered that Moses-EL’s lawyers be allowed to re-test it. A different man — a convicted rapist — admitted to having sex with and beating the victim on the night of the attack. But then he recanted, and prosecutors say he is not credible. A judge ordered a new trial, and the Denver District Attorney’s Office pushed forward with it, despite an outcry from some in Denver’s African-American community calling for the case to be dropped.

In 2016, after four hours of deliberation, a jury found Moses-EL not guilty, but that meant the debate over the case simply moved from the criminal side of the courthouse to the civil side.

In the statement on Wednesday, Coffman’s office all but asserted that Moses-EL is guilty. “Much of the evidence the attorney general’s team reviewed supports the victim’s account and calls into question Moses-EL’s innocence,” the Attorney General’s Office wrote in the statement.

After the statement was released, one of Moses-EL’s attorneys, Gail Johnson, accused the attorney general of adding insult to his “already severe injury by misstating the evidence and continuing to suggest he committed the crimes” he was acquitted of two years ago. She argued that multiple claims in the attorney general’s announcement are false, including that the victim has for 30 years “consistently” identified Moses-EL as her attacker. Instead, the victim initially told police she didn’t clearly see her rapist because the lights were off, Johnson said.

“A stay is merely a tactic to further delay justice for Mr. Moses-EL,” Johnson said in a written statement. “It is Attorney General Coffman whose unreasonable position in this case has ratcheted up the costs to taxpayers and the pain for all involved.”

In addition to his petition for compensation under the exoneration law, Moses-EL has also sued the City and County of Denver for wrongful conviction. But, if he’s successful there, it would only further complicate his efforts to receive compensation via the state’s law.

A provision of the law requires the courts to reduce the money awarded if the petitioner has won a separate civil case related to the wrongful conviction. (Other provisions of the law reduce the amount of money awarded if the petitioner doesn’t take a course on personal financial management or maintain health insurance.)

So what does all this mean? It’s now been 31 years since the attack that started this case. There may never be a consensus on whether there was one victim that night or two.

“Attorney General Coffman should take this opportunity to agree that the State of Colorado should fairly compensate Mr. Moses-EL for the over 28 years he spent in prison as an innocent man,” Johnson said in her statement.

“[O]ur justice system asks so much of victims,” Coffman wrote in hers. “[T]hey are subject to intense and invasive scrutiny and must repeat over and over the painful details of what happened to them. … I offer her my heartfelt sympathies.”

Colorado Sun writer John Frank contributed to this report.


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