Indiana’s Exoneration Fund

I’ve been practicing law since 2003. You’d think after all that time I would have shed any naivete. You’d be wrong.

This week I had a phone call with a friend. She was the first wrongfully convicted client I ever helped free from prison. We will forever share a bond over that experience, as her case taught me so much about the system.

She spent nearly eight years in prison for a murder she did not commit, thanks to evidence fabricated by the State. Thereafter, my exonerated client’s case was added to the National Registry of Exonerations.

Several years ago, Indiana created a process by which exonerees like my client could be compensated for the time they wrongfully spent in prison. Nearly eighteen months ago, my client filed an application to receive compensation. The application was over 200 pages long.

Here’s where I was naive about the process. I assumed (incorrectly) that this was going to be an easy process. After all, the only pieces of evidence revealing my client’s involvement were fabricated; once they were thrown out, nothing was left. The only thing tying my client to the victim was the fact that they lived in the same building.

After my client was granted relief from her conviction, Curtis Hill, the elected prosecutor at the time, issued a press release indicating that because he could not prove she had anything to do with the murder, he was dismissing all charges against her. But…here’s the kicker. He clarified that he could not prove she was guilty, but that did not mean she was actually innocent.

Back to that phone call I had this week. My exonerated friend informed me that she received a phone call indicating her application was being voted on at the board’s quarterly meeting. And she did not feel good about how the conversation went. She thought she would be asked about any new information that had come to light since she filed the application over a year ago. She thought that she would have the opportunity to address the board and answer any questions they may have about her case.

After my conversation with her, I did some research and asked a ton of questions about the process. Here’s what I learned, which I pass along in hopes it might help someone else in a similar position.

FIRST, if you are an exoneree and are considering applying to the fund for compensation, be sure to seek out counsel to assist you. This is not an easy process. The paperwork showing you were exonerated probably will not be enough.

SECOND, if you are an attorney assisting an exoneree with applying for compensation, you are permitted to be involved in the process, although that involvement is somewhat vague. The application itself does not ask whether the exoneree has an attorney, so you will have to let general counsel at the Indiana Criminal Justice Institute know that you are representing the exoneree.

This is where my naivete came in: I practice in criminal law, where everything is governed by statute, rule, or case law. But if you look at the exoneration fund statute, there is no mention of counsel, other than the duty for the institute to contact prior counsel about the underlying case.

THIRD, before the full board votes on compensation, the application is investigated and a subcommittee votes on whether to recommend approval for compensation. That entire process is largely secret. As counsel you can provide those doing the investigation with information, but you will not know what information they are receiving from the State, for example. And you will not know what the subcommittee recommended until the board hearing itself. Finally, at that hearing you will not be permitted to say anything on your client’s behalf.

So if new information comes to light since the application was filed that may demonstrate your client’s actual innocence, you will want to be proactive in providing that to the board at your earliest opportunity.

FINALLY, if the board declines to provide compensation, your client is not done. She can ask for review of the decision.

Thankfully, during this tumultuous week I was able to contact an attorney working with my client’s co-defendant, who has uncovered quite a bit of new information proving our clients’ innocence. The board graciously agreed to hold my client’s application so they can consider this new information.

I hope to share what I have learned in a later post. But to learn more, here is a podcast on just some of the new information.