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August 10, 2012

Bill aims to help exonerees proven innocent in court

Wrongful Imprisonment Compensation Act now in Senate

By Andy Kozlowski
C & G Staff Writer

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At a private gathering in Rochester Hills Aug. 3, from left, former Prosecutor Carl Marlinga, exonerees David Lee Gavitt and Larry Souter, Sen. Steve Bieda and exoneree Kenneth Wyniemko discuss a new bill that aims to help innocent people who were wrongly imprisoned.

Senate Bill 61, the Wrongful Imprisonment Compensation Act, is out of committee and on the Senate floor.

Supporters say the bill is essential because exonerees — people sent to prison who are later proven innocent in a court of law — have no way to seek relief from the state, despite the fact the state was the plaintiff in the case brought against them.

For one Michigan exoneree, David Lee Gavitt, released June 6, he lost more than 26 years of his life, after being accused of killing his family in a house fire, when he was in fact innocent.

Currently, the state simply admits it made a mistake and releases the prisoner, often penniless and with no place to go. The exonerees have to cope with lost time, gaps in employment and education, family and friends who died while they were away, panic attacks and other anxieties in public, and more. The state helps actual criminals get back on their feet after prison, but not innocent people who were wrongly incarcerated.

SB 61, authored by state Sen. Steve Bieda, D-Warren, seeks to fix this. In its current form, exonerated individuals would be eligible for up to $60,000 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. And earlier exonerees wouldn’t be out of luck, either: Anyone wrongfully convicted before the law would have a five-year window to file a claim.

There have been at least 873 exonerations in the U.S. between 1989 and 2012, totaling more than 10,000 years served in prison, according to a national registry of exonerations compiled by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law. Researchers are also aware of roughly 1,200 additional exonerations for which there is less data.

While SB 61 has the support of numerous Michigan exonerees who know firsthand the horrors of being locked up for a crime they didn’t commit, the same exonerees say more work needs to be done to ensure all exonerees proven innocent in a court of law are honored — not just those cleared by DNA evidence. As it stands, the bill’s language leaves wiggle room that could cause some exonerees to be denied compensation.

At a private gathering in Rochester Hills Aug. 3, exonerees Gavitt, Larry Souter and Kenneth Wyniemko shared their concern with Bieda, as did directors from The Innocence Project at Thomas M. Cooley Law School in Lansing, the U-M Innocence Clinic, and Proving Innocence, founded by Bill Proctor of WXYZ Channel 7.

“If someone’s exonerated, people want to make sure they’re 100 percent innocent,” Bieda explained. “DNA, to most people, is 100 percent certainty, which makes it easy to put that language in there and sell people on it.” He said what’s needed is wording that will definitively cover both exonerees cleared by DNA evidence, as well as those cleared by equally strong non-DNA evidence. “We can tweak the language,” Bieda said.

Wyniemko said they must.

“Innocence is innocence,” Wyniemko said.

 

‘My lungs were black with soot’

None of the exonerees could have seen it coming.

In Wyniemko’s case, the police and prosecutor hid evidence and falsified testimony, framing him for the rape and armed robbery of a Clinton Township woman in 1994. He had never even met the victim. Early police reports indicate that when she was raped, she couldn’t see the assailant’s face because the man had worn a mask and blindfolded her.

Wyniemko was locked up for nearly a decade before his name was cleared by new DNA evidence and the revelation that a jailhouse snitch’s testimony — the lynchpin of the case against him — had been coerced by Clinton Township detectives Sgt. Thomas Ostin and Sgt. Bart Marlatt, their supervisor Lt. Al Ernst, and Macomb County Assistant Prosecutor Linda Davis, now judge of Mount Clemens 41-B District Court.

Since securing his freedom with the help of reporter Kim Shine at the Detroit Free Press and the people at The Innocence Project, Wyniemko received an out-of-court settlement in a civil suit with Clinton Township, but not a penny from the state itself. He is the exception, rather than the rule, in that he received compensation of any sort. The real rapist, Craig Gonser, was later confirmed in a DNA match in 2009.

In Souter’s case, he was in the wrong place at the wrong time. He went to a bar with a woman in 1979; the woman died later that night. It wasn’t until 1992 that he was accused of bludgeoning her to death with a whisky bottle. Souter spent 13 years in prison on a second-degree murder conviction before new evidence showed the death didn’t involve him at all — the woman had been struck by a motorhome’s mirror as she walked alone down M-37 outside her hometown of White Cloud, as detailed in a long-buried police report by the driver’s daughter shortly after it happened. With the help of defense attorney John Smietanka, Souter was proven innocent and set free.

And then there’s the case of Gavitt, where the science of the times failed to explain what happened. His wife and two daughters died in a house fire in Ionia in 1985. He was charged with arson and spent 26 years in prison, even though not a drop of gasoline was found at the scene. Advances in fire science have since proven the blaze was a “flashover,” in which toxic gasses naturally building up in a closed space burst into flame.

“Twenty-six years I spent in prison — it was hell,” Gavitt said. “There were times I felt like just curling up in a ball, lying in my bunk, and hoping and wishing someone would just dig a hole, throw me in it, and just be done with it, because of the humiliation I spent, not only being in prison, but being accused of murdering my wife and daughters.” He took off his glasses and started crying. “No parent should have to bury their children.”

Gavitt said that prior to the fire, he always thought his first instinct would’ve been to go to his wife and children first. When it actually happened, though, he mindlessly broke out a window to escape, cutting his arm so deeply he wound up losing four pints of blood. Neighbors had to restrain him from running back into the fire to save his family. While he was hospitalized, the doctors thought he wasn’t going to make it.

Although the U-M Innocence Clinic has proven he’s not guilty, Gavitt still hasn’t found peace. He says every day he tries to make sense of what happened to him, and every day he blames himself for not having checked the smoke detector.

“The only thing I feel guilty of is surviving this tragedy,” Gavitt said. “Why I survived, I don’t have the answers to that. Nobody does but one person: God. Why did God keep me alive? There must be a reason God kept me on this earth. I breathed the same smoke they did. My lungs were black with soot.”

 

Hope for the future
It’s for innocents like Gavitt, Souter and Wyniemko that SB 61 was made.

The bill nearly passed in 2008: It had the full support of the House and was on the cusp of a clean sweep of the Senate. When it came time for the Senate, however, the bill was stonewalled by then-Sen. Wayne Kuipers, R-Holland, who declined to schedule it for a vote. The bill died that session.

Now the bill is back for another try. If it clears the Senate, it will be sent to the House committee and then the House. Exonerees hope the bill will pass and help them start over in life. But they say nothing can truly make up for what they lost being wrongfully imprisoned.

“Ken, Dave and myself — we’ll never be normal,” said Souter, who met Gavitt while in prison at Carson City Correctional Facility. “They can’t give you those years of your life back. You just have to pick up the pieces.”

For more on The Innocence Project, visit http://innocenceproject.org. For more on the U-M Innocence Clinic, visit www.law.umich.edu/clinical/inno cenceclinic/. For more on Proving Innocence, visit www.provinginnocence.org.

You can reach C & G Staff Writer Andy Kozlowski at akozlowski@candgnews.com or at (586)279-1104.