In 2013, as then-Gov. John Hickenlooper signed a law allowing people who had been wrongfully imprisoned to be compensated for the time they spent locked up, a man with a long goatee and a leather motorcycle vest stood behind him.
That was Robert Dewey, who had been falsely convicted of murder and exonerated and who was the inspiration for the law. After the signing, which drew national attention, Dewey spoke of how the law would help others, too.
“It’s quite an accomplishment getting the bill passed, not only for me and my family, but for guys coming up behind me,” he told the Los Angeles Times.
Nearly six years later, though, Dewey is still the only person to have won a case for compensation against the state, despite attempts by at least a half dozen other people. In every case but Dewey’s that The Colorado Sun was able to review, lawyers from the state Attorney General’s Office argued that the person seeking compensation hadn’t met the law’s high standard for “actual innocence.”
That may change this week, though.
New Attorney General Phil Weiser faces a deadline Thursday to file a document in court agreeing to pay Clarence Moses-EL what the law allows for exonerated people who can prove their innocence — $70,000 for every year spent behind bars. For Moses-EL, who was acquitted of rape after having already served 28 years, that comes out to nearly $2 million.
Colorado’s previous attorney general, Cynthia Coffman, fought Moses-EL’s compensation petition, arguing that, while a jury may have found him not guilty, there wasn’t enough evidence to conclude that he is innocent. As she prepared to leave office, though, Coffman put the case on hold and said Weiser seemed likely to take a different course.
On the campaign trail, Weiser expressed interest in settling the Moses-EL case, but he has not said what he’ll do since being elected. A spokesman for Weiser, Lawrence Pacheco, said Wednesday that he could not comment on pending cases.
If Weiser doesn’t file the document Thursday, Moses-EL’s case will resume moving toward trial.
After Coffman announced the pause in Moses-EL’s case, The Colorado Sun sought to learn how many people had been paid under the law and how many had sought to be. But Colorado’s Judicial Branch doesn’t track how many petitions have been filed under the exoneration law.
It does, however, know how many petitions have been successful because money paid out for successful claims routes through the Judicial Branch. In 2014, 2015, 2016 and 2017, according to judicial accounting records, the branch paid a little more than $100,000 each year under the law — all to Dewey. Last year, it paid him a lump some of more than $760,000 to knock out the balance of what Dewey was owed — a grand total of nearly $1.2 million.
The attorney general’s office provided The Sun with a list of four other cases where it represented the state in petitions for compensation. In three of those cases — two involved alleged sex assaults and a third involved a fraud charge — the office successfully argued that the petitioners didn’t sufficiently prove their innocence to merit payment.
“The statute clearly does not provide remuneration in every case in which a defendant is ultimately exonerated,” one judge wrote in dismissing a petition.
The fourth case is still pending, but there, too, the attorney general’s office has opposed the petition and argued the difference between not guilty and innocent.
The Sun also found another case involving the compensation law — an unsuccessful one mentioned in a Court of Appeals decision.
And, even if Moses-EL wins payment for his time in prison, he still might not receive any money under the law. That’s because he is also pursuing a civil-rights lawsuit against the city of Denver. Anything he collects from that lawsuit — where he is seeking unspecified damages — would be deducted from what he can collect under the exoneration law.
That makes civil rights lawsuits, or at least the threat of them, potentially much more lucrative to exonerated people than seeking payment under the wrongful conviction law. In 2016, one of Colorado’s most famous exonerees, Timothy Masters, settled with the city of Fort Collins and Larimer County for a combined $10 million. That far outweighed what he could have collected by petitioning under the exoneration law.
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