"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Sunday, August 2, 2015

Florida man struggles to build life after death row exoneration

Seth Penalver
Seth Penalver
Seth Penalver dropped to the floor and wept into his chair when a Florida jury declared him not guilty in the shooting deaths of three people during a 1994 home invasion.

After 3 trials and 18 years in prison - including 13 on death row - a Broward County jury in 2012 found Penalver not guilty of capital murder in the 1994 slayings of Casmir Sucharski, 48, Marie Rogers, 25, and Sharon Anderson, 25.

Little did he know about the struggles that lay ahead. His release from prison marked a new chapter, one that's been filled with ups and downs, given his prolonged absence from society. Despite his acquittal, he says he struggles to find work because of his background, which includes 2 prior nonviolent felonies.

"You Google my name and it lights up the screen. I'm 20 years minus a resume, so it's hard," he said.

Experts say Penalver's struggles with reintegration are typical for death row exonerees or people found to be wrongly convicted. On paper, they're no longer offenders, but they're not quite free of the stigma or psychological impact of their incarceration. The duration of their incarceration can strain personal relationships, creating a void in support systems after their release. Additionally, they often lack access to the same career or counseling services available to parolees because technically, they're not on parole.

"The media attention tends to focus on how people got wrongly convicted, what in the system led to these cases, and those are important stories worthy of attention," said University of North Carolina at Greensboro professor Saundra Westervelt, author of "Life After Death Row: Exonerees' Search for Community and Identity."

"But the story doesn't end there. There's a slew of practical problems they have to figure out how to manage."

The state could help improve prospects for exonerees by providing monetary compensation and reintegration services, said Westervelt, a board member of Witness to Innocence, which works to abolish the death penalty and provide support to former death row inmates.

Only 30 states have laws that provide monetary compensation to wrongly convicted people, which can include death row exonerees. And in many states, including Florida, they come with limits. In some states, access to monetary compensation is available only for people exonerated by DNA evidence, who receive an official gubernatorial pardon or who don't have prior felonies.

A crime unfolds on video

Local media dubbed the triple slayings the "Casey's Nickelodeon murders" because Sucharski was an owner of Casey's Nickelodeon, a Miramar nightclub where he met aspiring models Rogers and Anderson. The 3 were shot dead in Sucharski's home in Miramar, Florida, early in the morning of June 26, 1994.

Penalver and co-defendant Pablo Ibar were charged in the crime after witnesses identified them in grainy home surveillance video showing 2 men breaking into Sucharski's home. Penalver surrendered to law enforcement in August 1994 after a warrant was issued for his arrest.

Penalver stood trial three times for the murders. His first trial with Ibar in 1997 ended in a mistrial after the jury deadlocked 10-2 in favor of guilt. The cases were severed, and Penalver was tried again in 1999 and sentenced to death on charges of murder, attempted robbery and burglary.

The Florida Supreme Court overturned Penalver's verdict in 2006 based on a series of evidentiary and constitutional errors related to witness testimony and identification. Given the absence of physical evidence connecting Penalver to the crime and questions about the identification of the men in the surveillance video, "the witnesses' statements presented at trial were of paramount importance," the judges wrote in their ruling.

An expert witness who viewed the tape said that he couldn't identify anyone from it, but that the person in the video had facial characteristics inconsistent with Penalver's facial structure. Some people who knew Penalver said the video wasn't him or they couldn't tell. One said she couldn't tell from the face, but the subject's gait was like Penalver's. Another told the police that it was Penalver, but then testified in court that she couldn't say whether it was him or not.

With respect to this last witness, the prosecution argued that she changed her testimony after meeting with the defense, improperly suggesting -- with no evidence to support it -- that the defense had tampered with her, the court found. The court also found that the prosecution improperly admitted hearsay testimony that an alternate suspect was out of state, when there was no evidence that the suspect was out of state. The prosecution also presented evidence implying that Penalver had been suicidal and wrongly used that suggestion to imply consciousness of guilt, the court said.

"In light of the scant evidence connecting Penalver to this murder and the consequent importance of identifying the individual depicted on the videotape in sunglasses and hat, we conclude that the improperly admitted evidence and the State's suggestion that the defense tampered with or suborned perjury by an identification witness meet the cumulative error requirements outlined above and require reversal," the court said in its opinion.

The video magnified the uncertainty, making the strength of the remaining evidence all the more important, said Temple University law professor Jules Epstein, who specializes in forensics. Appellate courts assess error based on the magnitude of the mistakes and their cumulative impact.

"The weaker the rest of the evidence, the more significant the mistakes are. Conversely, the stronger the remaining evidence, the impact of mistake goes down," Epstein said.

Stepping up for the wrongfully convicted

Penalver says he gets by on odd jobs and government assistance in the form of food stamps. He would like to attend school or learn a trade, but living hand to mouth makes it impossible to find time or money for education, he said.

Compensation from the state would help, but under the "clean hands" provision of Florida's Victims of Wrongful Incarceration Compensation Act, Penalver is ineligible because of his 2 prior nonviolent felonies, which are unrelated to the triple slayings he was accused of.

"Just because I had prior felonies in the past, that shouldn't mean I can't be compensated for what was done to me," he said. "It's hard getting back on your feet; anything would help."

Source: Las Vegas Review-Journal, August 1, 2015

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