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| 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, November 23, 2014
