Exonerees not eligible under compensation statute face uphill climb in civil court

A jury ruled against the plaintiffs, two Mexican nationals, in a federal civil rights suit out of Lubbock (discussed earlier in this Grits post) after they'd served 12 years in prison based on erroneous convictions overturned because of ineffective assistance of counsel. Attorneys for the state sounded exultant:

Karen Matlock, with the Attorney General's office, called it "a great day".

"We are glad that this trial is finally concluded and has come to a very happy ending," Matlock said. "We are very happy that our system has allowed Ranger Sal Abreo of the Texas Rangers to clear his name."

Matlock also released a single quote on behalf of Mr. Abreo

"Men of integrity when attacked will not respond but will wait patiently until time proves him right," Matlock said.

Attorneys for the plaintiffs said they respect the jury's verdict and that their clients are ready to move on.

"We are grateful that they are free from prison," Fernando Bustos, the plaintiffs' attorney, said. "We are disappointed with the jury's decision but we certainly respect it and we are grateful that these men can live the rest of their lives as free men."

Bustos said they will not seek further action in the case.

It's probably a bit overstated, though, to say that Ranger Abreo was "proven right" since we're talking about a pair of false convictions. If he was "right" the plaintiffs would still be in prison, so the state in these cases didn't get it right at all! Plus, it's difficult ignore Abreo's unorthodox investigation methods, or to un-ring the bell when a memo was introduced in court from the Lamb County District Attorney calling Abreo “the worst Texas Ranger you will ever meet.” That's all just out there now, caveats and post hoc explanations notwithstanding. Indeed, prosecutors had to call in Abreo's boss to testify that the arrests in question were valid "despite mistakes made by lead investigator Sal Abreo."

Williamson County DA John Bradley, of all people, was called as an expert witness (@ $175 per hour) to testify why the DA claiming the defendants committed crimes in the press when he can't prove it in court wasn't actually defamatory, leading me to wonder: Since when is Bradley an expert on libel and slander law? The only reason I can think of that he'd be considered an "expert" on that topic is because he routinely engages in the same behavior!

Bottom line, this case demonstrates the flip side to the compensation debate going on in Dallas about whether lawyers should be paid for filing civil suits on behalf of people who've been falsely convicted. When an exoneree chooses to sue rather than accept state compensation - or when, as in this case or with Anthony Graves (before recent legislation), defendants are freed on any procedural grounds besides a habeas writ finding "actual innocence" - such litigation is never a slam dunk, particularly in the US 5th Circuit where Texas resides. There is no Texas civil rights statute, so the only option for pursuing such cases is in federal court, where a defendant must prove a "pattern and practice" of misconduct, not just that some wrong was done to them in particular. Even then, it's such an extraordinarily high bar to breach the various court-created immunities on police and prosecutor misconduct that even deserving plaintiffs, as a practical matter, are likely to lose.

DNA doesn't exist in most cases, leaving folks like these two plaintiffs in a position where, to secure their freedom, they must prove a negative - that they didn't do something. (The Todd Willingham case is a great example of this conundrum - the evidence used to convict him was a bunch of phony, unscientific hokum, but since even a stopped clock is right twice a day it's impossible to say investigators weren't accidentally right despite the litany of error presented as fact in court.) Then, for exonerees who aren't eligible under the (relatively narrow) state compensation statute, to win compensation in civil court, plaintiffs must basically prove not just that law enforcement pro-actively framed them but that such behavior was institutionally tolerated - an even higher bar than merely proving one's innocence. Whenever attorneys take such cases on a contingency basis, there's a very real chance, as in this instance, that they'll sink a tremendous amount of time and resources into a case and still wind up with nothing.

Despite exultations from the Attorney General, this was hardly a "great day" for anybody except the county's insurance carrier who would have been on the hook if they'd lost. Police errors and shoddy tactics were exposed and two men who are very likely innocent will receive no redress for valid grievances. That's a pretty shaky platform from which to gloat to the media that somehow the system works.