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
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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
Summary Reports
Received on April 18, 2016.
Referred to the committee on Health and Human Services.
Government Accountability Board
Lobbyist Update
Pursuant to 13.685 (7), Wis. Stats.
Received on April 19, 2016.
Department of Transportation
Quarterly Report on Electronic Voter Registration System Implementation Progress
Received on April 20, 2016.
Referred to the committee on Elections and Local Government.
Government Accountability Board
Quarterly Report on Electronic Voter Registration System Implementation Progress
Received on April 20, 2016.
Referred to the committee on Elections and Local Government.
Department of Revenue
Wisconsin Lottery Quarterly Report
Pursuant to 565.37 (3), Wis. Stats.
Received on April 26, 2016.
Wisconsin Women’s Council
2013-2015 Biennial Report
Received on April 25, 2016.
Department of Children and Families
Summary Reports
Received on April 27, 2016.
Referred to the committee on Health and Human Services.
Department of Children and Families
First Quarter Alleged Sexual Abuse Report
Pursuant to 48.981 (9)(b), Wis. Stats.
Received on April 29, 2016.
Referred to the committee on Health and Human Services.
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Motions Under Senate Rule 98 and Joint Rule 7 for the Month of April 2016
A certificate of commendations by the Wisconsin Senate on the motion of Senator Bewley, for the American Tree Farm System, on the occasion of celebrating 75th anniversary on June 12, 2016.
A certificate of congratulations by the Wisconsin Legislature on the motion of Senator Harsdorf, for Otmer “Andy” Anderson, on the occasion of celebrating his 90th Birthday shared with family and friends.
A certificate of congratulations by the Wisconsin Senate on the motion of Senator Moulton, for Molly Arbuckle on the occasion of the celebration of her academic achievements.
A certificate of congratulations by the Wisconsin Senate on the motion of Senator Nass, for Ryan Baker on the occasion of earning and attaining the rank of the Eagle Scout Award.
A certificate of commendations by the Wisconsin Senate on the motion of Senator Stroebel, for Nicholas Bath, on the occasion of earning and attaining the rank of the Eagle Scout Award.
A certificate of commendations by the Wisconsin Senate on the motion of Senator Risser, for Ellen Berz, on the occasion of her hard work and many achievements on the occasion of her 2016 Wisconsin Women in Government Legacy Award.
A certificate of congratulations by the Wisconsin Senate on the motion of Senator Nass, for Harry Bos on the occasion of earning and attaining the rank of the Eagle Scout Award.
A certificate of commendations by the Wisconsin Senate on the motion of Senator Olsen, for Allen Buechel, on the occasion of his 40 years of dedicated public service.
