Decision
The Claims Board held a hearing on this matter on March 16, 2016. Claimant, Raynard R. Jackson, appeared by phone. The Milwaukee County District Attorney’s Office appeared by phone in opposition to Jackson’s claim.
Background
This is a claim for Innocent Convict Compensation pursuant to § 775.05, Wis. Stats. The claim relates to Jackson’s 2004 conviction for Felon in Possession of a Firearm, Carrying a Concealed Weapon, and Obstruction of an Officer. Jackson states he is innocent of the weapons-related charges. He requests the maximum reimbursement of $25,000 for the six years and three months he served in prison. Claimant’s Facts and Argument
Jackson states that on March 25, 2003, he and a companion, Morris Rash, saw a police car pass them as they entered a store. When they exited the store, the squad turned around and followed them as they walked down the sidewalk. Jackson states that he and Rash ran from the officers because they were both subject to outstanding warrants. Jackson states that Officer Lough chased him but that he was apprehended by Officer Dodd. Jackson states that he did not have a gun. Officer Awadallah apprehended Morris Rash.
Jackson alleges that this encounter involved a “rogue” group of District 3 officers: Awadallah, Lough, Dodd, and Dineen, who had a history of framing individuals for crimes and other misconduct. Jackson notes that the prior District 3 Captain had been relieved of command for sending a memo that encouraged officers to make “the thugs” lives “even more miserable than before” after an officer was transferred out of District 3 due to misconduct. Jackson alleges that these four officers planted a gun at the scene of his arrest and falsified reports in order to frame him.
Jackson states that the officers lied about many elements of the arrest. He specifically alleges: 1) there is no record of the “drug dealing complaint” to which the officers said they were responding; 2) the officers saw Jackson and Rash enter and leave the store; therefore, they were clearly not loitering; 3) Officer Lough wrote contradictory reports, one indicating that he picked up the gun while pursuing Jackson and one indicating that he went back for the gun after he apprehended Jackson; 4) the gun the officers claim Jackson discarded was the exact same type and caliber issued to police officers, was not registered or reported stolen, and did not have Jackson’s fingerprints on it; 5) Officer Lough testified at trial that he personally inventoried the gun into evidence, but police records show that it was Officer Awadallah who did so, more than five hours after Jackson’s arrest; 6) Officer Lough reported that he was present for the arrests of both Jackson and Rice, even though the two men fled in different directions and were arrested in different locations; 7) contrary to Officer Lough’s report, Jackson was arrested by Officer Dodd, and Lough had no contact with Jackson; 8) Officer Dodd struck Jackson while he was handcuffed, and took Jackson’s watch and money, neither of which was ever inventoried.
In February 2005, Jackson was convicted of possession of a firearm by a felon, carrying a concealed weapon, and resisting an officer.
Jackson’s initial post-conviction counsel, Attorney Lucius, filed an appeal in September 2005. In March 2005 Officer Awadallah was charged in federal court for threatening to plant evidence on a suspect in an unrelated case. Despite the fact that the charges against Officer Awadallah were prominently reported in multiple Milwaukee-area and statewide media sources while the post-conviction motion was still pending, Lucius failed to raise the issue in the motion.
In addition, in 2006 while Jackson’s appeal was pending, the court of appeals released its decision in State v. Missouri. The court granted a new trial to Missouri due to the trial court’s refusal to admit evidence of other acts of misconduct involving Officers Awadallah, Lough, Dodd, and Dineen. Despite the fact that these were the same four officers involved in Jackson’s arrest, Lucius failed to amend his motion. Jackson’s post-conviction motion was denied by the trial court.
In 2007, Jackson’s new attorney, Mr. Gould, filed a motion for ineffective assistance of counsel based on Lucius’s failure to raise issues related to the Missouri decision and newly discovered evidence—Officer Awadallah’s conviction on federal civil rights charges. This motion was also denied by the trial court.
Attorney Gould appealed the denial and in December 2008 the court of appeals ordered a hearing on the issues. In July 2009, 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 both gun-related convictions and remanded those charges for a new trial. In August 2009 the State dismissed the gun-related charges.
Jackson believes that the officers involved in his arrest have no credibility, which was proven by Awadallah’s conviction and the reversal of numerous other convictions based on the same type of misconduct by the same officers involved in Jackson’s arrest.
Jackson points out that he would have only served 9 months for the conviction for obstruction and requests the maximum reimbursement for the six years and three months he spent in prison.
DA’s Response and Argument
The DA believes Jackson has failed to meet the standard of providing clear and convincing evidence that Jackson was innocent and recommends denial of this claim.
The DA states that neither the court proceedings nor Jackson’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 he was innocent of those charges.
The DA notes that the court of appeals did not find that there was merit to Jackson’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 Jackson 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, Jackson had served most, if not all, of his maximum sentence. Therefore, the State moved to dismiss the outstanding charges.
When asked about the current status and credibility of Officer Lough, the DA reported that Officer Lough was still working as an officer with the Milwaukee Police Department. The DA also reported that Officer Lough’s credibility had never been contested like Officer Awadallah nor had Officer Lough ever been charged with similar crimes.
Discussion and Conclusion
Under the standards of Wis. Stat. § 775.05(3), the Claims Board must determine whether or not the evidence is clear and convincing that the petitioner was innocent of the crime for which he was imprisoned. The primary evidence provided by Jackson in support of his petition was that the court of appeals vacated the gun related charges due to ineffective assistance of counsel. However, based on long-standing precedent, the Claims Board does not automatically equate such a vacation with innocence. A claimant like Jackson must prove his innocence by clear and convincing evidence, whereas in order to obtain a vacation based on ineffective assistance of counsel he only had to make a showing that there was a reasonable probability that the trial result would have been different if he had had more effective counsel. These are two very distinct standards with different burdens of proof and cannot be conflated. Therefore, the vacation, standing alone, does not mean that a claimant has proven his innocence by clear and convincing evidence.
Aside from the vacation noted above, Jackson cites the significant credibility problems and bad acts of Officer Awadallah, as evidence to substantiate that he was innocent of the charges and that essentially the gun charges were entirely fabricated. While it is true that Officer Awadallah has severe credibility problems and based on the record should not be believed, it was really Officer Lough who was the primary officer on the arrest. The DA stated that Officer Lough was still working as an officer with the Milwaukee Police Department, his credibility had never been contested like Officer Awadallah’s, and Officer Lough had never been charged with similar crimes. As such, and based on the record before this Board, there is insufficient evidence to establish the conspiracy alleged by Jackson that all four officers engaged in a deliberate fabrication of his gun charges. In the absence of such evidence, the Board has no factual basis on which to find Jackson innocent of the charges to a clear and convincing standard.
Based on the above, and after hearing the evidence on the petition and reviewing all of the written submissions, the Board concludes and finds that the evidence is not clear and convincing that Jackson was innocent of the 2004 conviction for Felon in Possession of a Firearm and Carrying a Concealed Weapon for which he was imprisoned. Accordingly, the Board further concludes that no compensation shall be awarded. Vote: 4-0.
Dated at Madison, Wisconsin this 11th day of April, 2016.
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
_____________
STATE OF WISCONSIN CLAIMS BOARD
CLAIM OF: MARVIN D. CLEMENTS
CLAIM NO. 2015-039-CONV
Decision
The Claims Board considered this matter on March 16, 2016. Claimant, Marvin D. Clements, did not request a hearing. The Claims Board reviewed the written materials submitted by Clements. The Milwaukee County District Attorney’s Office did not submit a written response to this claim.
Background
This is a claim for Innocent Convict Compensation pursuant to § 775.05, Wis. Stats. The claim relates to Clements’ 2000 conviction for two counts of Knowingly Violating a Domestic Abuse Order and one count of Bail Jumping-Misdemeanor. Clements states he is innocent of this crime. He requests the maximum reimbursement of $25,000 for the 9 months he spent in prison plus an additional $15,000 for his three years of probation. Claimant’s Facts and Argument
In 1999, Clements was charged with two counts of Knowingly Violating a Domestic Abuse Order (KVDAO) and one count of Bail Jumping-Misdemeanor because of phone calls he made to the mother of his children, who had a restraining order against him. During the jury deliberation phase of Clements’ trial, the jury sent two questions to the court, the second of which was “does the defendant’s intention matter in this case?” The court called the jury back into the courtroom and stated, “With regard to Jury Instruction 2040, violating a temporary restraining order or an injunction, the answer to the question does the defendant’s intention matter in this case, no, it does not.” This statement by the court was incorrect. The court then reread a portion of the jury instructions, stating, “Again, the parties have stipulated that the defendant knew that the injunction had been issued. As to whether or not he knew that his act violated its terms, that’s a question for the jury.” This statement by the court was correct. The court gave correct instructions to the jury regarding the bail jumping charge.
Clements appealed his conviction, arguing that “the court’s clearly erroneous oral instructions effectively relieved the State of its burden of proving the mens rea required by each offense beyond a reasonable doubt.” Clements’ sole defense at his trial was that, “he did not know he was violating the restraining order, injunction, or the terms of his bond because he had been trying to contact his children, not Valisha Walker, who was the mother of his four children,” and who was the person with whom he had been ordered to have no contact. The court of appeals reversed Clements’ convictions for violating the KVDAO, finding, “it is impossible to tell whether the jury followed the correct instruction on intent, or the incorrect one that allowed for conviction on the charges under Wis. Stat. § 813.12 even though ‘intention’ did not ‘matter.’” The appeals court found that the trial court’s instructions regarding the bail jumping charge were correct and upheld that conviction. The appeals court remanded the KVDAO violation charges for retrial. Clements was released in September 2000, after serving his sentence. In September 2001, the State declined to retry Clements because he had already served his time.
DA’s Response and Argument
The Milwaukee County District Attorney’s Office (DA) did not respond to this claim.
Discussion and Conclusion
Under the standards of Wis. Stat. § 775.05(3), the Claims Board must determine whether or not the evidence is clear and convincing that the petitioner was innocent of the crime for which he was imprisoned. The primary evidence provided by Clements in support of his petition was that the court of appeals remanded the KVDAO charges due to improper jury instructions. However, based on long-standing precedent, the Claims Board does not automatically equate such a remand with innocence. A claimant like Clements must prove his innocence by clear and convincing evidence. The remand, standing alone, does not automatically mean that a claimant has proven his innocence by clear and convincing evidence. The remand does not address actual innocence inasmuch as it demonstrates that there was an error at trial. These are two very different standards.
Moreover, the record also appears to show that Clements clearly had in fact been contacting Valisha Walker in actual violation of the domestic abuse order. While there appears to be some question as to whether Clements knew that such acts were illegal, it is Clements’ burden in this forum to prove by clear and convincing evidence that he did not know such acts were illegal. Unfortunately, on this point Clements has not carried his burden and can point to no facts in the record to support his lack of knowledge. The only fact he points to is the erroneous jury instruction. This error, however, does not constitute actual facts supporting his lack of intent on the KVDAO crime.
Based on the above, and after hearing the evidence on the petition and reviewing all of the written submissions, the Board concludes and finds that the evidence is not clear and convincing that Clements was innocent of the 2000 conviction for Knowingly Violating a Domestic Abuse Order and Bail Jumping for which he was imprisoned. Accordingly, the Board further concludes that no compensation shall be awarded. Vote: 4-0
Dated at Madison, Wisconsin this 11th day of April, 2016.
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
_____________
Pursuant to Wis. Stats. 13.172 (2) and (3), attached is the list of agency reports received from executive branch and legislative service agencies for the month of April, 2016.
Department of Administration
Temporary Reallocation of Balances
Pursuant to 20.002 (11)(f), Wis. Stats.
Received on April 4, 2016.
Referred to the joint committee on Finance.
State of Wisconsin Claims Board
Claims heard on March 16, 2016
Pursuant to 16.007 and 775.05, Wis. Stats.
Received on April 11, 2016.
State of Wisconsin Claims Board
Additional Claims heard on March 16, 2016
Pursuant to 16.007 and 775.05, Wis. Stats.
Received on April 13, 2016.
Department of Health Services
Reports by the Wisconsin Hospital Association Information Center (WHAIC)
Pursuant to 153.05 (2m)(c), Wis. Stats.
Received on April 13, 2016.
Government Accountability Board
Lobbyist Update
Pursuant to 13.685 (7), Wis. Stats.
Received on April 12, 2016.
Department of Children and Families
