Attorney Gould appealed the denial and in December 2008, the court of appeals ordered a hearing on the issues. In the July 2009 hearing, the court found that attorney Lucius’s failure to bring up Officer Awadallah’s prosecution and the Missouri decision constituted ineffective assistance of counsel. The court vacated the two gun-related convictions and remanded those charges for a new trial. In August 2009, the State dismissed the gun-related charges.
The claimant states that the officers involved in his arrest have no credibility, which has been proven by Awadallah’s conviction and reversals of numerous other individuals’ convictions based on the same type of misconduct by the officers involved in his arrest.
The claimant states he would have only served 9 months for the obstruction conviction and requests the maximum reimbursement for the six years and three months he spent in prison.
The Milwaukee County District Attorney’s Office (DA) recommends denial of this claim. The DA states that neither the court proceedings nor the claimant’s submissions establish that he was actually innocent of the crimes for which he was convicted, and that the State’s decision to dismiss the gun-related charges was not based on a determination that the clamant was innocent of those charges.
The DA notes that the court of appeals did not find that there was merit to the claimant’s underlying claim, but only that his motion was sufficient to warrant a hearing. At the July 2009 hearing, Judge Martens found that Awadallah’s conviction and the Missouri decision “at least as it relates to Awadallah” created a reasonable probability that the trial result would have been different due to Awadallah’s role in the chain of custody of the recovered gun. Judge Martens vacated the gun-related charges and ordered a new trial on those counts; however, the obstruction charge was not overturned.
The DA points to the fact that Judge Martens’ ruling was limited to Officer Awadallah and the chain of custody issue. Significantly, Judge Martens 1) did not find that the claimant was innocent in fact; 2) did not find that any officer engaged in misconduct; 3) did not find that the evidence would be insufficient to establish guilt at retrial; and 4) did not determine that Missouri evidence was admissible to any officer other than Awadallah.
The DA states that it moved to dismiss the gun-related charges because the evidence would not have been as strong at retrial, since Awadallah was not available to establish chain of custody. That, and the possibility that Missouri evidence would be admitted, raised the question of whether the State could prove the charges beyond a reasonable doubt. In addition, the claimant had served most, if not all, of his maximum sentence. Therefore, the state moved to dismiss the outstanding charges.
The DA believes the claimant has failed to meet the standard of providing clear and convincing evidence that he was innocent and recommends denial of this claim.
The Board defers decision of the claim at this time so that the claimant can be made available to attending a hearing.
The Board concludes:
That the following identified claimants are denied:
TRC Engineers, Inc.
Robert Steinway
Regenial Hoskins
Sandra Klemm
Elbert Compton
Jerome T. Walker (2 claims)
That the following identified claimants are denied:
Raynard R. Jackson
That payment of the amounts below to the identified claimants from the following statutory appropriations is justified under § 775.05, Stats: Dated at Madison, Wisconsin this 31st day of June, 2013.
COREY FINKELMEYER
Chair, Representative of the Attorney General
GREGORY D. MURRAY
Secretary, Representative of the Secretary of Administration
KATIE E. IGNATOWSKI
Representative of the Governor
LUTHER OLSEN
Senate Finance Committee
MARY CZAJA
Assembly Finance Committee
_____________
Legislative Reference Bureau Corrections
Corrections In:
ASSEMBLY AMENDMENT 1,
TO ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2015 ASSEMBLY BILL 874
Prepared by the Legislative Reference Bureau
(February 24, 2016)
hist576181.
Page 1, line 4: delete “”except for”” and substitute “”, except for””. 22.
Page 2, line 10: delete “(am)” and substitute “(am).”.
