Metro DetroitJuly 5, 2012
Bill seeks compensation for wrongfully imprisoned
By Andy Kozlowski
C & G Staff Writer
You wake up one morning to a ringing at the door. On your porch is a young lady in a business suit. She asks who you are. You tell her your name.
That’s when she steps aside and the police rush in, throwing you to the floor. Your hands are cuffed to your back. You’re told you’re under arrest for breaking and entering, armed robbery and rape — but you didn’t do a thing.
You’re sentenced to 60 years in prison. Finally, nine years later, DNA evidence clears your name. Now you’re free — but penniless and lost. You have nothing to wear, nowhere to go. Your father died while you were behind bars. Unaccustomed to people, you suffer panic attacks at the mall.
The state has resources to help actual convicts cope with the real world, but nothing for the innocent man who was wrongfully imprisoned. You’re shown the door, and you’re on your own.
This is what happened to Kenneth Wyniemko. While very rare, it could happen to anyone. Hundreds across the country have found themselves in similar predicaments: More than 290 people have been exonerated by DNA evidence since 1989, according to the Innocence Project.
Now, to help exonerees in Michigan, Sen. Steve Bieda, D-Warren, is working to see Senate Bill 61, the Wrongful Imprisonment Compensation Act, approved and made law. Currently, SB 61 is in committee and could head to the Senate floor this fall. Bieda’s bill has been repeatedly reintroduced in the legislature since 2008. Rep. Jon Switalski, D-Warren, brought it before the House again during the 2009-10 session.
“Here’s a bill that doesn’t affect a lot of people, but at the same time, (wrongful imprisonment) is such an egregious wrong that it shocks your conscience,” Bieda said. “This is a situation where someone innocent has been hurt. Collectively, as a people, we’re all part of this system, and if someone is wrongfully convicted and denied their freedom, we have to have something in place to put that person in a position where they can pick up the pieces of their life and move on.”
Under SB 61, exonerated individuals would be eligible for up to $45,000 for each year they were wrongfully incarcerated — compensation for such things as lost wages, criminal defense costs and medical expenses related to imprisonment. The bill also requires that the arrest, fingerprints, sentence and conviction be expunged from the record.
Earlier exonerees won’t be out of luck, either: Anyone wrongfully convicted before the law would have a five-year window to file a claim.
While Wyniemko himself received an out-of-court settlement in a federal lawsuit, he is the exception, not the rule. Assistance like SB 61 is crucial, he said.
Living the nightmare
Wyniemko’s case began in 1994. A Clinton Township woman came home one night and was raped by an intruder. The man wore a mask and blindfolded her; the most she saw was a glimpse of his chin. Police made a composite sketch of the suspect anyway.
Ten weeks later, police arrested Wyniemko for a crime he didn’t commit. An anonymous tipster had called saying Wyniemko looked like the suspect in the sketch.
At the Macomb County Jail, Wyniemko met the two lead detectives, Thomas Ostin and Bart Marlatt, sergeants at the time with the Clinton Township Police Department.
“The first thing I told both of them is they’re making a terrible mistake, and I wanted to call an attorney,” Wyniemko said. “I didn’t know what the hell was going on.”
Instead of getting an attorney, he went through a police lineup and was released, only to be told there would be a search of his home. Police trashed the place, and when he returned the next day, he found eight guns aimed at him. Ostin told him he’s the one.
Wyniemko was appointed an attorney; a jury was picked out; and his trial held that Monday before Macomb County Circuit Judge Michael Schwartz. Now the victim, who previously said she couldn’t describe the masked suspect who had blindfolded her in the dark, said she was positive it was Wyniemko. But none of the forensic evidence — semen, pubic hairs and fingerprints — matched Wyniemko, the victim or her husband.
“After I hear this testimony, I think, ‘What am I doing here?’” Wyniemko said.
That’s when Macomb County Assistant Prosecutor Linda Davis entered the picture with the “jailhouse snitch.” She said that inmate Glen McCormick would testify against Wyniemko. McCormick, a four-time habitual offender, had shared a cell with Wyniemko and would testify against him in exchange for having the life sentence he faced revoked.
Naturally, McCormick told the prosecutor what she wanted to hear. And just like that, Wyniemko was sentenced to decades behind bars, while an actual criminal served less than a year. Davis is now the judge of Mount Clemens 41-B District Court.
As it turns out, Wyniemko’s persecutors were withholding evidence and falsifying testimony, but it would be nearly nine years before this came to light.
While he was at the Ryan Correctional Facility in Detroit, Wyniemko studied law in the prison library. He began writing to Kim Shine at the Detroit Free Press and directors of the Innocence Project at Thomas M. Cooley Law School in Lansing.
In 2002, they went to the Clinton Township Police Department to see the evidence used in Wyniemko’s trial. The police blocked them. Macomb County Circuit Judge Edward Servitto overruled the police, and exoneration proceedings began in earnest.
Four pieces of evidence were found that had been hidden by Ostin and Davis and never brought up at the original trial: semen-stained pantyhose and panties, a cigarette butt with saliva on the tip, and fingernail scrapings from the victim, each in separate bags with hand-written notes from Ostin telling Michigan State Police not to test them.
The pieces were sent off to be checked with the latest DNA technology, and Wyniemko was definitively proven innocent.
He remembers his attorney, Gail Pamukov, telling him the good news. At first he thought the funny look on her face meant his mother had died; he had already suffered the loss of his dad, a World War II vet who died on Memorial Day of 2000, emotionally wrecked that the country he fought for had framed his son. When Wyniemko learned his freedom was secured, he rushed around the table and picked Pamukov up into the air.
He was released from prison June 17, 2003, two days after his 52nd birthday. Wyniemko said Macomb County Prosecutor Carl Marlinga was the only person to apologize to him.
In 2003, Wyniemko filed a federal lawsuit against Clinton Township, its police department and several individuals, including Ostin, Marlatt and Lt. Al Ernst, alleging civil rights violation under USC 1983.
McCormick, the original snitch, produced a sworn statement testifying that the police and prosecutor had coerced him into falsely testifying against Wyniemko, threatening to lock him up forever if he didn’t. It was revealed that police first approached another inmate, Wayne Burkhardt, but were refused. Also, a recording showed police coaching McCormick on what to say on the stand.
The parties reached an out-of-court settlement in July 2005. U.S. District Judge Lawrence Zatkoff wrote a 51-page opinion denying the police department’s request to have the case dropped, and accused the police and prosecution of conspiracy to obstruct justice, suborning perjury and withholding evidence.
“The police and the prosecutor had the audacity to call me a criminal, when they had in fact committed criminal acts,” Wyniemko said.
He added he’s since learned Ostin was seeing his ex-girlfriend at the time, with whom Wyniemko had parted on bad terms.
As for the real rapist, a DNA match linked the crime to Craig Gonser in 2009. He was already serving prison time upstate after being caught by his wife masturbating to porn with his 18-month-old daughter on his lap.
As for Wyniemko, he was now free, but felt lost. People proven innocent are let out of prison with no help adjusting to the outside world. He wants to see compensation provided to exonerees to help them get back on their feet.
“Even though the state brought charges against the 10 of us (Michigan exonerees), and even though we were all proven innocent, not one of us received a penny from the state,” Wyniemko said.
This, despite the fact the state managed a $100 million settlement in 2009 with inmates raped by guards at the Michigan Department of Corrections.
Senate Bill 61 would make a difference, Wyniemko said.
“If someone did commit a crime and is released on parole, the state will help them find housing, get clothing, get food stamps, get job training; yet for someone like me who is innocent, they do nothing,” Wyniemko said. “That has to change, and (SB 61) will provide that change.”
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