The Board concludes:
That the following identified claimants are denied:
Craig S. Greiger
Susan Roloff
Terry Miller
Mekioius D. Bullock, Sr.
David W. Orr
Cornelius R. Reed (Request for Rehearing)
That decision of the following claim is deferred to a later date:
Donna Cvetan
That payment of the amounts below to the identified claimants from the following statutory appropriations is justified under § 775.05, Stats: Clontech Laboratories, Inc. $4,770.00 § 20.144(1)(g), Wis. Stats. Dated at Madison, Wisconsin this 5th 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
April 12, 2016
Enclosed are three additional reports of the State Claims Board covering the claims heard on March 16, 2016. Those claims approved for payment pursuant to the provisions of s.16.007 and 775.05 Stats., have been paid directly by the Board.
This report is for the information of the Legislature, The Board would appreciate your acceptance and publication of it in the Journal to inform the members of the Legislature.
Sincerely,
GREGORY D. MURRAY
Secretary
STATE OF WISCONSIN CLAIMS BOARD
CLAIM OF: MAURICE J. CORBINE
CLAIM NO. 2015-047-CONV
Decision
The Claims Board considered this matter on March 16, 2016. Claimant, Maurice J. Corbine, did not request a hearing. The Claims Board reviewed the written materials submitted by Corbine. The Sawyer County District Attorney’s Office declined to 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 Corbine’s 2011 conviction for Operating While Intoxicated (5th) and Operating While Revoked (2nd). Corbine states he is innocent of this crime. He requests $90,000 for the three years he spent in prison. Claimant’s Facts and Argument
Corbine states that on September 28, 2007, he was a passenger in a truck driven by his cousin, Rodney. He states that Sawyer County/Lac Courte Oreilles Tribal Police Officer, Twyla Dailey, pulled in behind the truck approximately 10-15 seconds after Rodney parked it in the parking lot of a local tavern. Officer Dailey arrested Corbine for OWI. Officer Dailey’s report stated that she followed the truck into the parking lot because she had observed it speeding and that she pulled in immediately after the truck. Officer Dailey also reported that she observed Corbine exit the driver’s side door, walk around the front of the truck and up to the passenger side door. Corbine alleges that he had already exited the vehicle and was approaching the tavern when Officer Daily arrived and that he had walked back to the passenger side of the truck because he did not have a driver’s license.
Corbine alleges that both he and Rodney told Officer Dailey that Rodney had been driving the truck, not Corbine, who admits that he was intoxicated at the time. Corbine states that Officer Dailey informed him that her in-car camera was recording the incident. Officer Dailey transported Corbine to the Sawyer County Jail, where he saw her insert a DVD into the booking room recording equipment. Corbine states that Dailey again told him the interview was being recorded. Corbine alleges that during the entirety of his interaction with Officer Dailey, both in the parking lot and at the jail, he repeatedly told her that he was not the driver of the vehicle but she persisted in arresting him. Corbine believes that Officer Dailey targeted him personally because she is corrupt.
Prior to his trial, Corbine’s attorney requested copies of the in-car and booking room videos from the night of the arrest, however, the Sawyer County District Attorney’s Office did not produce the videos, claiming that they could not find them. Corbine was convicted in 2011 and sentenced to 3 years in prison and 3 years supervision.
In 2013, Corbine appealed his conviction based on ineffective assistance of counsel because his trial attorney (Hoffman) had failed to adequately investigate the failure of Sawyer County to produce the jailhouse video recording. The court of appeals remanded to the trial court for a Machner hearing. After the Machner hearing, the trial court ruled that Hoffman had adopted a reasonable strategy by not pursuing the video recording because it would have shown Corbine intoxicated and behaving aggressively and that the recording would likely not have changed the outcome of the trial. Corbine appealed the trial court’s ruling.
On February 10, 2015, the court of appeals reversed his conviction. Corbine was released on that same day, having completed serving his sentence. The court pointed to Hoffman’s testimony at the Machner hearing that he had relied on a description of what was on the jailhouse video based on a conversation he had with an unknown individual at Sawyer County. The court found: “Hoffman acknowledged he did not know the identity of the person who had allegedly viewed the video and therefore had no basis on which to determine whether that person was reliable…Further, Hoffman testified that his belief that the video portrayed Corbine in a poor light as based upon his review of the police report—not from something the unidentified person may have said. Finally, Hoffman testified he took no further steps to locate the DVD after he was told it was missing, and he never considered further action such as filing a motion.” In addition, the court also found that Hoffman was deficient by failing to ask Corbine at trial whether he denied being the driver, which would have been “highly relevant to the credibility of the defense theory.”
Corbine states that the DVD recording which Sawyer County failed to provide would have supported his defense that he was not the driver and that he had repeatedly denied being the driver during his interactions with Officer Dailey. Corbine believes the Sawyer County District Attorney intentionally withheld the DVD, which would have proven his innocence.
DA’s Response and Argument
The Sawyer County District Attorney’s Office (DA) declined to 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 Board concludes and finds that it is unable to determine whether the evidence is clear and convincing that Clements was innocent of the 2011 conviction for Operating While Intoxicated (5th) and Operating While Revoked (2nd) for which he was imprisoned. Accordingly, the Board further concludes that the Sawyer County District Attorney’s Office shall file a written response to this claim and make itself available for appearance at a future hearing on this matter. 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: RAYNARD R. JACKSON
CLAIM NO. 2014-080-CONV
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.
