Wrongful Conviction, Unequal Compensation

By Clark Merrefield

In March 1996, a bodega clerk scanned a lineup of suspects at a police station in Astoria, a neighborhood in the New York City borough of Queens. Two armed men in ski masks had robbed his nearby store. The clerk recalled glimpses of light black skin behind one mask, though he hadn’t seen either robber’s face.

He picked out John Scott, a construction worker. Scott later testified he was nowhere near the store. The clerk conceded at trial he was uncertain Scott was one of the robbers. Despite the clerk’s reversal, Scott was sentenced to 25 years in jail.

Scott languished in jail four years before an appeals court threw out the conviction.

For his troubles, Scott sued the state under a special law for those wrongfully convicted—a statute written to fulfill a “moral demand” to compensate those who needlessly lost years of their lives behind bars.

It took Scott 6 years to prevail under the law after he was released. He got $25,000 in compensation for each year he lost in jail.

A review by the New York City News Service shows that the state’s legal system shortchanged Scott and that there is a wide disparity in payments for the wrongfully convicted.

In the past ten years, 22 people have been compensated under the state’s law. Lawyers who have handled multiple cases in the system said they believed it doled out payments at an even rate.

But state records show Scott got more than ten times less per year in jail than the person at the upper end of the scale.

Then there are those who fared even worse than Scott—and got nothing.

The wrongful conviction compensation law, passed in 1984, includes several complex provisions so that at least one man exonerated by DNA testing was deemed ineligible for payments.

In another case, a wrongfully convicted woman spent 25 years in prison before key evidence against her was discredited. Her wrongful conviction compensation claim was denied.

And in some cases, the wrongfully convicted got compensation by circumventing the state system altogether.

But despite its drawbacks, the New York State law has some advantages over other state laws.


To best understand the system and its problems, it pays to look closer at the details in the Scott case.

On March 21, 1996, two men wearing black ski masks entered a Queens bodega. Guns drawn, the taller robber demanded cash from William Vizcarrondo, who was working the register.

The robber demanded Vizcarrondo’s jewelry and a pack of cigarettes, and then left with his partner.

John Scott was brought in a week later to the 114th Precinct in Queens as a suspect in an unrelated investigation involving a shooting. He was acquitted on that charge. While there, police asked Scott to be part of a lineup in the bodega robbery investigation. Scott consented.

Vizcarrondo looked at the men arrayed against the wall. He recalled glimpses of the taller robber’s light black skin and his deep voice. Scott fit the man he remembered.

But Scott, a part-time construction worker, wasn’t the taller robber. He wasn’t even in Queens at the time. He was watching television with friends in Manhattan.

During the trial, Vizcarrondo conceded that because the men wore masks, there was no way he could be sure Scott was one of them; witness misidentification is not uncommon in wrongful conviction cases. Still, the jury convicted Scott.

Four years into a 25-year sentence, Scott’s case was reopened before the Second District Court of Appeals.

“The chief witness for the People in this case made no visual identification of the defendant at trial, and conceded his inability to do so,” Judge Lawrence J. Bracken wrote. “This witness also made no in-court identification of the defendant based on his presumed ability to recall the supposedly distinctive voice of the tall robber.”

Scott was free.

Scott then made a wrongful imprisonment compensation claim, something that is possible in 26 states.

“The whole reason that this wrongful conviction statute was enacted in New York was to try to make it quicker and easier, and more certain, for people who it’s quite clear have been wrongfully convicted, and have been exonerated, to get some money,” said Adele Bernhard, a law professor at Pace University who has studied New York’s wrongful conviction compensation statute.

Under the statute a judge reads the facts in the case and, if the lawsuit is appealed by the state—many are—the judge determines whether the facts fit the law’s criteria. If it does, the state tends to settle the claim rather than proceed with a potentially lengthy trial.

In Scott’s case, instead of going to trial, the sides settled for $100,000—an average of $25,000 for every year Scott spent in jail.

Bernard and other attorneys said that while the state law has no explicit provision for evenhanded payments, considering such factors as a person’s income and potential career trajectory, they believe the payments have been about the same—around $100,000 per year of incarceration.

But at $25,000 per year incarcerated, Scott got one of the lowest average payouts in the past ten years.
James O’Donnell, for instance, was wrongfully convicted in the late 1990s of sodomy and spent two years in jail, half the time of Scott. Yet in 2006 he settled to get $150,000 for each year in jail.

Robert McLaughlin, wrongfully convicted of murder and robbery in 1981, spent six years in jail before he was exonerated. In 1989 he was awarded $1.9 million—more than $300,000 per year he spent in jail.

Settling out of court tends to result in slightly less money. Settlements resulted in a median of about $82,000 per year of incarceration for the 29 cases in which the number of years the wrongfully convicted person spent in jail could be determined.

Awards—where the case goes to trial and a judge decides the final amount—resulted in a median of just over $86,000 per year of incarceration.

Yet in the past decade only one case has gone to trial. The other eighteen cases during that period have been settled out of court.

Lawyers interviewed said that if a claim has merit, settling is simply less time consuming and less costly for the claimant and for the state, and that there was once a cap on settlements.


Before 1984, most wrongful conviction claims were nearly impossible to secure. They required special legislation signed by the governor. From 1947 to 1984, five wrongfully convicted people received awards from the state, ranging from $7,000 to $1 million.

Then came the case of Isidore Zimmerman, which captured headlines and spurred public debate.

Zimmerman, a Columbia student convicted of killing a police detective in 1947, filed one of the state’s most well known unjust conviction claims during that time.

After serving 25 years in prison, an appeals court ruled in 1962 that prosecutors suppressed evidence pointing to Zimmerman’s innocence, and he was freed.

Zimmerman then made several unsuccessful attempts to recover damages. Finally, Governor Hugh Carey signed special legislation in 1981 that allowed Zimmerman to sue the state.

Zimmerman was awarded $1 million by the Court of Claims in 1983, an average of $40,000 for each year he was incarcerated. A year later, Zimmerman died of a heart attack at age 66.

His case, among others, led Governor Mario Cuomo to request that the New York State Law Review Commission draft a wrongful conviction compensation law. The resulting report says “morality demands” that the state compensate the wrongfully convicted, but it does not say much a year in prison might be worth.

“Few occurrences are more tragic than the conviction and imprisonment of a person for a crime he did not commit,” the report says. For a wrongfully convicted person, money is, “the most viable method of assisting him to recoup what he lost.”

“By imposing financial liability upon the State, recognition is given to a proposition that would seem to be self-evident, namely that it is the State’s obligation, and no one else’s, to do what justice and morality demand when an innocent person is convicted of a crime he did not commit,” the report says.

The commission identified four basic criteria for wrongful conviction claims: a person must have been convicted and incarcerated; that conviction must have been overturned or vacated; the convicted person must be able to prove his innocence; and, he must not have contributed to his conviction by his own conduct, for instance, by confessing to police.

Since the law was enacted in 1984, at least 250 compensation claims have been filed, resulting in 15 awards and 27 settlements totaling nearly $24 million in payments.


Many of the cases that went to trial are not easily available, but one case that is available provides some insight into the judge’s thought process.

Terrence Ferrer filed a claim after he was exonerated of a Bronx murder in 1984. He spent about 12 years in prison.

“I tried Ferrer because you couldn’t settle for more than $50,000 in those days,” said Ferrer’s attorney, Irving Cohen, who has represented people in roughly a dozen wrongful compensation claims.

At trial, Cohen called an economic expert to estimate Ferrer’s foregone earning potential. Ferrer was awarded a Master’s degree in prison and expressed interest in getting a law degree. The expert found Ferrer would have earned a total of $1.58 million in past and future wages alone.

Judge Robert Abrams disagreed. He mentioned Ferrer’s past employment at fast food restaurants, though not how much Ferrer earned. The judge said there was no way of knowing whether Ferrer’s employment goals would have been met.

But Abrams was much more sympathetic to the stigma attached with a prison term.

“It is as if a man’s life has been terminated at one point and then resurrected later; yet with all the intervening traumas, dangers and injuries that will endure, linger and become a permanent part of his life,” Abrams wrote.

For past wages, the judge awarded $135,000, roughly $11,250 per year incarcerated. For the loss of future earning capacity, Abrams awarded $225,000, without explaining how he arrived at the amount.

The remainder of Ferrer’s $1.56 million award was for mental anguish and loss of reputation.

At age 43 Ferrer died of a heart attack.


New York’s compensation law does have some distinct advantages compared with the rest of the country. The Court of Claims may award any amount—there is no floor or ceiling.

Federal claims, meanwhile, are capped at $100,000 per year of incarceration for plaintiffs sentenced to death, and $50,000 per year of incarceration for all others.

In Montana, people wrongfully convicted of a felony who served time are entitled only to financial aid toward education at state colleges.

In Missouri, only those who are found wrongfully convicted by DNA evidence may apply for restitution, at a limit of just over $18,000 per year of incarceration. A wrongfully convicted person is barred from civil lawsuits if he makes a claim under that law.

The New Jersey law creates a floor of $20,000 for each year incarcerated, making it one of the few states that has a minimum award. The maximum is twice the yearly salary of the person the year before he was convicted.

Awards in Massachusetts are limited to $500,000, but the court may also order the state to provide physical and emotional health services, and half-off tuition at state universities.

And in North Carolina, awards are capped at $750,000, but job training and tuition reimbursement may also be awarded.

In New York, innocence must be shown by clear and convincing evidence—not the lowest burden of proof, but also not the highest. In contrast, claimants in Connecticut need only show a preponderance of evidence, the lowest burden of proof.

Once a New York claimant proves his innocence he has a good chance of winning an award or reaching a settlement. In a way, the case is decided before it is accepted by the court.

“It’s an odd statute that way, but I understood why they did it,” Cohen said. “But, I think if the case is reversed or thrown out on any ground you should be able to bring the lawsuit and let the judge decide early on.”

“There are going to be people prevented from suing,” he added.


In 1973, Betty Tyson was a 25-year-old drug addict and prostitute working the streets of Rochester.

In December that year, a consultant to the Eastman Kodak Company soliciting prostitution was found strangled in an alley.

Tyson was convicted of the murder based on two eyewitness accounts. There was no physical evidence linking her to the crime.

After more than two decades in prison, Rochester media and activists took up Tyson’s case. By 1998, Betty Tyson was free—but her $12.5 million wrongful conviction claim was denied.

That’s because her conviction was reversed based on police misconduct. The police had withheld evidence that showed to her innocence. But prosecutors did not retry her case, and Tyson was never acquitted.

Even as he upheld the state’s appeal of Tyson’s suit, Court of Claims judge Donald Corbett wrote that her case highlighted problems with the New York law.

“The Legislature, in its wisdom, has placed a high threshold upon those seeking recompense under this statute, and unfortunately for Betty Tyson, her claim cannot surmount that limitation,” Corbett wrote. “So, unfortunately for Betty Tyson, there can be no recovery here, and no opportunity for her to prove her innocence, perhaps her ultimate goal. Regardless of whether this decision survives appellate scrutiny, the Legislature may wish to revisit this ‘structurally complicated statute.’”

There has been only one legislative update to the statute since it was passed. “Anthony’s Law” named for Anthony Capozzi, a wrongfully convicted man who was exonerated by DNA evidence after more than 20 years in prison, gives docket priority to compensation claims in which innocence is proven through DNA evidence.


Deoxyribonucleic acid (DNA) contains the genetic code that convicts criminals and sets the innocent free.

But when New York’s compensation law was passed, DNA technology was in its infancy. If a person confessed to a crime, he probably did it, the thinking went.

“One of the things we’ve learned is that people can be innocent and still confess,” said Adele Bernhard, the Pace professor.

That’s exactly what Douglas Warney did when he confessed to a stabbing murder in Rochester in 1996.

Warney’s knowledge of the crime scene ultimately led to his conviction. He knew the layout of the murder victim’s house, according to court papers. He knew what the victim was cooking. When an officer asked how he was doing, Warney said, “not good…I got a body.”

He was convicted on the strength of his unrecorded confession—though blood found at the scene did not match his, or the victim’s.

Ten years later, DNA testing matched that blood and other physical evidence to Eldred Johnson, who was already in prison for a similar murder. Johnson confessed to the crime, and Warney was freed.

Earlier this year, Warney sued the state for wrongful conviction compensation. Despite the DNA evidence, his $10 million claim was denied.

“There is no doubt that this confession contributed to [Warney’s] conviction,” Court of Claims Judge Renee Forgensi Minarik wrote. “[Warney] argues, however, that because his confession contained information that [he] could not possibly have known, his confession was obviously the product of misconduct and coercion on the part of the police officers that secured it.”

Judge Minarik decided that Warney did not provide substantial evidence of coercion. She decided that Warney had contributed to his own conviction and that, by law, he was not entitled to compensation.

When Warney was released in 2006, news reports elaborated on his psyche and pointed to a different conclusion. They pointed to a man who was, at the least, confused when he confessed.

Warney had AIDS-related dementia, an eighth-grade education, and an IQ of 68, according to the news reports. He claimed he was ill when he confessed. Several points in his confession were patently untrue—at one point he said he’d used his brother’s car that day, a car the brother gave up six years before the murder.


But compensation through the state law is not the only means for the wrongfully convicted to recover money. If there is evidence of a civil rights violation the wrongfully convicted may successfully file a civil rights lawsuit.

Although the Court of Claims process is streamlined compared to the civil route, attorney Joel Rudin complained that in the Court of Claims, “you have a trial in front of a single judge paid by the State of New York.”

Awards in civil suits are decided by a jury, and damages tend to be higher than in the Court of Claims, Rudin said. The burden of proof in civil cases is also lower—the claimant does not have to clearly and convincingly prove his innocence.

In 2003, Rudin helped secure a $5 million settlement for Albert Ramos, who spent seven years in jail on a rape conviction that resulted from prosecutorial misconduct. That settlement is far higher than any of the settlements or awards under the state’s wrongful conviction law.

Betty Tyson, the former prostitute and drug addict, got $1.2 million in 1998 by filing a civil rights suit against the City of Rochester.

In 1989, five teenagers from Harlem admitted to beating and raping then-Salomon Brothers employee Trisha Meili in Central Park. The teenagers, aged 14 to 16, were all convicted and sentenced to prison.

But the confessions, four of which were videotaped, were coerced, and DNA evidence found at the scene matched none of the boys’.

The confessions were secured using, “force and trickery, sleep deprivation and isolation from their families,” according to court documents.

The DNA evidence matched that of Matias Reyes, who was in jail for a separate rape and murder. The boys were not fully cleared until Reyes confessed to the crime in 2002.

The wrongfully convicted men and their families have since filed a $250 million federal civil rights lawsuit against the police and prosecutors who arrested them and tried their case.

At least one of the exonerated men, Yusef Salaam, has also filed a compensation claim with the Court of Claims. His lawyer, Myron Beldock, said it would “complicated” to win damages under the state’s wrongful conviction law because Salaam and the others made false confessions.

“We decided to bring both cases,” Beldock said. “There are a lot of reasons why, but that is something I would consider confidential.”

He added, “If we recover full damages in the civil rights case there is no reason to go back,” to the Court of Claims.


For more than a decade, Michael Clancy’s life was reduced to confinement and routine. He was convicted in 1999 of a murder in the Bronx that witness testimony would later show he didn’t commit.

“Every morning I woke up and I saw those bars, and that was my greeting every morning,” Michael Clancy said. “Every morning I’d wake up, I would sit up, I would look up—and there they are. And that’s what I went through for 11 years.”

Clancy didn’t know what to do when he was released. He didn’t know how to establish credit. He didn’t know how to get a state ID.

“Thank God” his lawyer was waiting for him outside, Clancy said, because he didn’t even know how to use a Metrocard.

State-funded programs to help ex-convicts readjust to life outside of prison were unavailable to him. Their money was reserved for people who had actually committed crimes, Clancy said.

Indeed, no social services, such as job and readjustment training, were awarded to those wrongfully convicted in any of the cases reviewed for this article.

“They didn’t have a system for a person who was found innocent,” he said.

Clancy is doing well for himself now. He has an apartment, owns an Ipod, and says he bought an $8,000 bed.

But in a way, Clancy was lucky. His sister was able to support him after his release, and his union, the International Union of Elevator Constructors, offered him work immediately.

“They welcomed me with open arms,” Clancy said. “They said, ‘listen, you’ve been through so much the least we can do is at least give you an opportunity to prove yourself.’”

“People in my position, I hate to say, usually don’t get a break. A lot of these people, even though they’re found innocent, there’s always a question in the back of an employer’s mind, you know? This guy’s been in jail for this amount of time, you know? What did that do to him?”

On the advice of his lawyer, Clancy wouldn’t say whether he would file a claim under New York’s wrongful conviction law.

Additional reporting by Steven Bronner, Joshua Cinelli, Dan Macht, Rosaleen Ortiz and Matt Townsend.