What price to pay for wrongful imprisonment?
By Gene Warner NEWS STAFF REPORTER
Updated: 04/12/08 7:22 AM
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- Buffalo area residents Lynn M. DeJac and Anthony J. Capozzi, both imprisoned for crimes they didn’t commit, are seeking compensation from the state. Capozzi wants $41 million for almost 22 years of wrongful imprisonment; DeJac wants about $14.5 million for 14 years.
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Warith Habib Abdal of Lackawanna walked out of prison in September 1999 after serving 17 years in prison for a rape he didn’t commit. He was a free man at age 60.
“When they let me out, they gave me $40 and an old pair of dungarees with a broken zipper,” Abdal, the former Vincent H. Jenkins, said in 1999. “They told me, ‘Get out of here. You’re a free man.’”
Early in 2002, New York State gave him something else — $2 million.
That amount settled his Court of Claims wrongful-imprisonment lawsuit against the state.
Six years later, that $2 million settlement remains the third-highest award or settlement from the state for wrongful imprisonment.
Now two other area residents, Anthony J. Capozzi and Lynn M. DeJac, are seeking much larger awards for their wrongful imprisonments. Capozzi wants $41 million, DeJac about $14.5 million.
But records from the state Court of Claims show that, even in New York, less than one in five such wrongful imprisonment claims against the state has been successful. And of the 42 successful cases, former inmates received a total of $23.7 million, an average of about $565,000.
Since the Court of Claims Act was amended in 1984 to allow residents to seek damages for wrongf ul imprisonment, 250 claims have been filed. Of the 223 cases settled as of mid-January, only 42 resulted in financial awards or settlements.
Seven awards have been for more than $1 million, including a high of $3.3 million.
Opinions vary greatly about whether New York has been stingy or generous in its awards.
“The 1984 law regarding wrongful convictions is drawn in such a way and administered in such a way [by various attorney generals] as to make recovery extremely difficult,” said Ronald L. Kuby, the New York City attorney involved in the record $3.3 million settlement.
“They treat these cases the same way sleazy insurance companies treat claims: obstruct, delay, obfuscate, hope that the claimants become so desperate for money that they’ll settle for pennies on the dollar,” added Kuby, a former associate of the late William H. Kunstler.
But Adele Bernhard, director of the Criminal Justice Clinic at Pace University Law School in Westchester County, has a different view.
“The thing that’s really amazing is that we’re doing great in New York, compared to everywhere else,” she said. “We have a statute, and we’ve given money to 42 people.”
DeJac, now known as Lynn Peters, and Capozzi are fortunate in one respect: They’re seeking settlements in New York, considered one of the most progressive states for compensation.
Only 23 states have laws to compensate the wrongfully imprisoned. Various attorneys and other officials believe New York may be the most generous.
“New York was very aggressive and progressive in passing legislation as early as 1984 providing a remedy for wrongful imprisonment,” said Teresa A. Miller, a University at Buffalo Law School professor. “But the legislation strictly limits recovery against the state to people who can prove their actual innocence [by a standard of] clear and convincing evidence.”
While no one can cite any formula for such awards, attorneys familiar with the results have some idea how the Court of Claims may have arrived at its compensation figures.
Those attorneys say that wrongfully convicted inmates who have been compensated have received anywhere from $50,000 to $200,000 per year of wrongful imprisonment, for emotional suffering. Added to that are the inmate’s estimated lost earnings for those years, plus extra money for special circumstances, such as prison’s effect on more vulnerable inmates. No one can even guess how Capozzi and DeJac might fare in their claims. And it should be noted that attorneys often file for amounts many times higher than they settle for.
But legal observers cited some factors that may explain why Capozzi is seeking almost three times the amount sought by DeJac in their attorneys’ filings:
• Capozzi served much longer in prison, almost 22 years, compared with DeJac’s 14.
• DNA evidence proved Capozzi’s innocence, by any standard of proof required.
“The odds that Capozzi did that are one in a trillion,” Erie County District Attorney Frank J. Clark said.
DNA evidence also led to DeJac’s being granted a new trial, proving that her former boyfriend had been at the scene where her daughter’s body was found. But DeJac’s murder indictment was dismissed only after two pathologists agreed that Crystallynn Girard had not been strangled; thus, this case is not considered a homicide.
“In Capozzi’s case, the newly discovered evidence was the evidence that exonerated him,” Clark said. “In DeJac’s case, the newly discovered evidence was not the basis on which the indictment was dismissed. In her case, it was dismissed because of a re-evaluation of the cause of death.”
So under the Court of Claims Act, does DeJac have to prove that she’s innocent?
That’s a point attorneys no doubt will argue before the Court of Claims.
“According to the district attorney and at least two medical examiners, there was no murder,” said Steven M. Cohen, DeJac’s civil attorney. “So there can be no clearer case of innocence than that.”
• Capozzi’s mental illness. One of the factors the court looks at is what happened to the person when he was in prison, said Kuby, the New York City attorney.
“When you’re dealing with an especially vulnerable claimant, the courts will look to that vulnerability in assessing pain and suffering,” he said. “I would think the mental illness would argue for a larger award.”
Thomas C. D’Agostino, Capozzi’s attorney, cited several issues about his client’s mental condition, including how his years in prison exacerbated it and the question of his future care.
“I really think Anthony’s case is so vastly different from the other cases that I’m not sure they provide a guideline for what should happen in his case,” he added.
But why do more than 80 percent of wrongfully imprisoned New Yorkers lose their claims?
The answer lies in the language of New York’s Unjust Conviction and Imprisonment Act.
The law states that the person making the claim must have had his conviction thrown out for one of several specific reasons. The claimant also must prove “by clear and convincing evidence” that he did not commit any of the acts for which he was convicted and that he did not “by his own conduct” bring about his conviction, with any kind of plea.
Kuby cited the numerous technical objections that the statute raises, including the grounds on which an indictment was dismissed.
“It’s hard to prove by clear and convincing evidence that you’re innocent,” he added. “The system isn’t set up to prove innocence.”
DNA evidence conclusively proved the innocence of Abdal, the Lackawanna man who did 17 years for the rape he didn’t commit.
His attorney, Eleanor Jackson Piel, said that Abdal, who was sick with cancer, first refused to settle the case for $2 million, because he wanted to tell his story to the court. So an unusual agreement was reached. Abdal accepted $2 million for 16 of the 17 years he spent in prison but still retained the right to sue the City of Buffalo for the remaining year.
In 2005, Piel went to visit him in Lackawanna to discuss the pending lawsuit.
“Hello, Habib,” she said, as she entered his room. She got no response. “I took hold of his arm, and he had just died.”
