So what if everybody knows.  There’s a law.  The law says what it requires.  How hard is that to understand?

Section 103.001(2)(b) is abundantly clear that only a person who “has been granted relief on the basis of
actual innocence of the crime for which the person was sentenced” is entitled to compensation.  When applying for compensation, the person must include “a verified copy of the pardon or court order
justifying the application for compensation” as well as “a certification of the claimant’s actual innocence
of the crime for which the claimant was sentenced that is signed by the attorney representing the state in the prosecution of felonies in the county in which the sentence was rendered.”

How hard is that to grasp?  And why not, since we’re talking here about compensating the wrongfully imprisoned, giving them a big old check with lots of zeroes.  The State of Texas isn’t going to hand them out to just anyone, nor should it.  These checks are directed at a very small, very discrete group:  The Actually Innocent.

By anyone’s account, Anthony Graves was a member of that small club.  After 18 years in prison, he was due $1.4 million, not quite compensation if you crunch the numbers, but something to get him back on his feet.  That he fit the criteria isn’t just from a criminal defense lawyer view, but the position of the special prosecutor assigned to retry him after the reversal of his conviction. From the Houston Chronicle :

“Who would have envisioned this kind of situation happening?” Siegler said.

“I’m willing to testify to the fact that we believe he’s innocent,” she said. “I’ve signed an affidavit. I’m not sure what we are supposed to do to make it happen.”

Yet Graves application was rejected for failure to meet the stringent criteria that seemed so clear, obvious and critical at the time the law was passed, that this was only a law for the “actually innocent.”  The comptroller, charged with determining eligibility under the law, had no choice.

The letter from the comptroller’s office said the court order must indicate “on its face” that it was granted “on the claimant’s actual innocence.” Comptroller’s office spokesman R.J. Silva said the law did not allow for special consideration of the facts in Graves’ case.

Certainly it’s not the comptroller’s fault that the law requires the words “actual innocence.”  They don’t write the law. They just apply it. 

The question is why, given that the law demands a judgment of “actual innocence,” no such judgment issued.

Kelly Siegler, the special prosecutor who recommended dropping the charges against Graves, said that the words “actual innocence” are not commonly used in the courtroom. She said the compensation law likely was designed for cases involving innocence proven through DNA, not a case thrown out by prosecutors after a reexamination of the evidence.

No doubt she’s correct, that the Texas Legislature enacted this law in reaction to the wealth of DNA exonerations saving innocents from execution.  It’s unclear whether this is because Texas convicted more innocents than other states, or just likes to kill them more.  The underlying assumption, of course, is that there’s something special about a convicted defendant who is conclusively proven innocent by scientific evidence.

None of this does much for Anthony Graves at the moment.  The judge who dismissed Graves’ case could have included the magic words “actual innocence” as the reason for dismissal, and thus enabled him to claim compensation.  That didn’t happen.  Whether he can go for a second bite, with the prosecutor’s consent, and seek a new order, nunc pro tunc, finding the basis for dismissal to be “actual innocence” is an open question.  Not being sufficiently familiar with Texas criminal procedure, I can’t answer that question.

But it hardly comes as a surprise that compensation was denied because the magic words didn’t appear “on the face” of the order.  This is how laws work.  This is how grocery clerks check their list.  This is the way we deal with reactionary laws, enacted to address a specific situation, where other, unintended consequences were never fully considered.

Or perhaps the Texas Legislature did consider the full wealth of options and decided that they were only willing to provide compensation to a limited group of imprisoned innocent people, those for whom there could be no doubt, none whatsoever, of their innocence, as proven by scientific evidence.

A maxim in civil law is that the law does not provide a remedy for all the wrongs that man can inflict.  It’s not to say that this isn’t unfair, but that sometimes unfair things happen without recourse.  Not every wrong is compensable.  Texas has decided that Anthony Graves, incarcerated for long enough for a baby to reach her majority, will be left out in the cold.  Not that he’s undeserving, but that he’s the one for whom no remedy is available.

The disconnect here is inherent in the adoption of the magic words, “actual innocence.”  It’s conceptually wrong, a creature manufactured by those who refuse to accept the fundamental premise that a person not proven guilty is innocent because, under our system, that’s what he’s presumed to be.  In order to distinguish between the “not guilty” person, who they believe is really guilty and just got away with it, and the “actually innocent” person, who has the great fortune of having a scientific test available that others do not, this higher order of innocent has been created.  The mere “not guilty” innocent thus remains in a legal purgatory, where we might tolerate his freedom but surely won’t give him any cash to spend.

Still, they utter the platitude of “presumed innocent” regularly, but won’t put their money where their mouth is.

As Kelly Seigler correctly notes, the words “actual innocence are not commonly used in courtrooms.”  That will surely save the Republic of Texas a bundle of money.  And in the scheme of imprisoning, if not executing, people who aren’t proven to be guilty, isn’t that a good enough reason for some grocery clerk to require the magic words, so he can check them off his list before approving the pay out?

Update: Scott Henson at Grits for Breakfast , who was involved in lobbying for the compensation law, offers some inside explanation for its language.

The Comptroller ruled that the innocence compensation statute, which in the interest of full disclosure I helped lobby for in 2009 on behalf of the Innocence Project of Texas, doesn’t cover Graves’ unique circumstances. The statute was designed to address the 21st century rise of DNA exonerations, while Graves’ case doesn’t fit that narrow procedural mold. And, the reality is the language was a compromise with DAs and law enforcement interests who didn’t want to expand the definition of “exoneree” too broadly, which is the practical reason for the disconnect between the statute language and courtroom procedure that Scott Greenfield discusses. Still, it’d be a shame for him to have to resort to some massive federal civil rights lawsuit when the Governor agrees that Graves was falsely convicted and “deserves” compensation.

Which is why it’s not as simple as people think to write a law that fully meets its purpose.  It may have looked sweet at the time, but this is why the view that compromise is better than nothing doesn’t always work out as well as hoped..